CESTAT dismissed the appeal filed by the appellant against the order passed by the Commissioner (Appeals) which dismissed the appeal filed beyond the prescribed period and stated that the delay can only be condoned by the Commissioner if the appeal is presented within a further period of one month after the expiry of the statutory period of two months.

Brief Facts:

The appellant filed an appeal against the order passed by the Commissioner (Appeals) which dismissed the appeal because it was filed beyond the period prescribed under section 85(3A) of the Finance Act and the statutory requirement of pre-deposit was not satisfied.  

Contentions of the Applicant:

The learned consultant appearing for the appellant argued that the Commissioner (Appeals) dismissed the appeal only based on the reason that it had no power to condone the delay beyond three months given Section 85(3A) of the Finance Act and it did not examine the explanation that appellant had offered for the delay.

Contentions of the Respondent:

The learned authorized representative appearing for the department relied on the judgement in M/s. Singh Enterprises vs. Commissioner of Central Excise, Jamshedpur to argue that the Commissioner (Appeals) was justified in dismissing the appeal for the reason that it was not filed even within the extended period of one month after the expiry of the initial period of two months.

Observations of the Court:

The tribunal observed that Section 85(3A) indicates that an appeal shall be presented within two months from the date of receipt of the order of the adjudicating authority in relation to Service Tax, interest or penalty and further provides 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. It was further stated that the delay can only be condoned by the Commissioner if the appeal is presented within a further period of one month after the expiry of the statutory period of two months.

The court after referring to the judgement in Singh Enterprises stated that Section 5 of the Limitation Act cannot be invoked in the present case.

The court further relied on the judgement of the Supreme Court in Narayan Chandra Ghosh vs. UCO Bank and Ors. which held that when a statute confers a right to appeal, conditions can be imposed for exercising such a right and unless the condition precedent for filing appeal is fulfilled, the appeal cannot be entertained.

The decision of the Court:

The court upheld the order of the Commissioner (Appeals) and dismissed the appeal.

Case Title: Estate Officer, MP Housing and Infrastructure Development Board, Circle- Jabalpur vs. The Principal Commissioner of Central Excise

Coram: Hon’ble Mr. Justice Dilip Gupta, President and Hon’ble Mr. Rajeev Tandon, Member (Technical)

Case No.: Service Tax No. 51169 of 2018

Advocate for the Applicant: Mr. Sandeep Mukherjee

Advocate for the Respondent: Mr. Radhe Tallo

Read Judgment @LatestLaws.com

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