Whether Commissioner (Appeals) has power to condone the delay beyond stipulated period?

PJ/CASE LAW/2016-17/3153

Case:- M/s DIAMOND ENGINEERING WORKS VS THE COMMISSIONER CENTRAL EXCISE AND SERVICE TAX

Citation:- 2016-TIOL-1090-HC-GUW-ST

Brief Facts:-The appellant was served with a Show Cause-cum-Demand Notice by the Central Excise and Service Tax Authorities demanding Rs.4,85,899/- as Service Tax & Education Cess which was alleged to be payable for the period 2005-2006 to 2009-2010. The appellant submitted reply-cum-explanation to the demand notice but it was not to the satisfaction of the adjudicating authority who vide order dated 26.9.2012 confirmed the demanded amount.

Appellant’s Contention:- The appellant filed appeal under Section 85 of the Finance Act before the Commissioner and since it was filed beyond the maximum prescribed period of 3 months, the Commissioner dismissed the same vide order dated 17.11.2014 on the ground of limitation.

Respondent’s Contention:- The Commissioner held that he had no jurisdiction to condone the delay if the appeal was filed beyond one month in addition to statutory period of two months prescribed under Section 85(4)(3A) of the Finance Act, 1994. The appellant then filed another appeal before the Tribunal and it fully agreed with the view of the Commissioner in the light of decision of the Supreme Court in Singh Enterprises vs. Commissioner of Central Excise, (2008) 3 SCC 70 = 2007-TIOL-231-SC-CX. Section 85(4)(3A) of the Finance Act, 1994 reads as under:-
"85(4)(3A) - An appeal shall be presented within two months from the date of receipt of the decision or order of such adjudicating authority, made on and after the Finance Bill, 2012 receives the assent of the President, relating to service tax, interest or penalty ,Provided that the Commissioner of Central Excise (Appeals) may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of two months, allow it to be presented within a further period of one month."

Reasoning Of Judgment: Quoted provision is identical to Section 35 of the Central Excise Act, 1944. The Supreme Court in the case of Singh Enterprises (supra), while dealing with Section 35 of the Central Excise Act has held that the Commissioner did not have the power to condone the delay beyond the period of 30 days from the day of expiry of 60 days prescribed for filing statutory appeals. We, therefore, having regard to the decision of Supreme Court find no merit in the appeal.

Decision:-Appeal Dismissed.

Comment:- The gist of the case is that the Commissioner (Appeals) had no jurisdiction to condone the delay in filing appeal if the appeal was filed beyond the condonable period of one month in addition to statutory period of two months prescribed under Section 85(4)(3A) of the Finance Act, 1994. Hence, the appeal was dismissed as being time barred.

Prepared By: - Alakh Bhandari

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PJ/CASE LAW/2016-17/3153

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