The Allahabad bench of the Customs, Excise & Service Tax Appellate Tribunal(CESTAT)has held that the Tribunal is not competent to condone delay in filing of appeal before the first appellate authority beyond 30 days.
M/s Jai Maa Durga Engineers, the appellant stated that the Commissioner (Appeals) dismissed the appeal before him as time-barred. It is his observation that the Appellant has filed the appeal against the Order-in-Original dated 10.01.2017 which was communicated to the Appellant on 17.01.2017 and the Appellant was required to file the appeal on or before 17.03.2017 but the appeal was finally filed only on 15.05.2017 i.e. even after the condonable period of 30 days.
It was observed that “if the Commissioner is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of 60 days, he can allow it to be presented within a further period of 30 days.”
In other words, the appeal has to be filed within 60 days but in terms of the proviso, a further 30 days can be granted by the appellate authority to entertain the appeal. The proviso to sub-section (1) of Section 35 makes the position crystal clear that the appellate authority has no power to allow the appeal to be presented beyond the period of 30 days. There is a complete exclusion of Section 5 of the Limitation Act. The Commissioner and the High Court were therefore justified in holding that there was no power to condone the delay after the expiry of 30 30-day period.
A two-member bench of Mr P K Choudhary, Member (Judicial) and Mr Sanjiv Srivastava, Member (Technical) observed that from the application for condonation of delay, it appears that the appellant has categorically accepted that on receipt of the order, the same was immediately handed over to the consultant for filing an appeal. If that is so, the plea that because of lack of experience in business, there was delay does not stand to be reason.
The CESTAT held that the Tribunal is not competent to condone the delay in filing the appeal before the first Appellate Authority beyond the condonable period, and dismissed the appeal.
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