The Customs, Excise, and Service Tax Appellate Tribunal ( CESTAT ) Mumbai bench has held that the Commissioner (Appeals), has no power to condone delay beyond three months under the Finance Act, 1994.
The assessee was aggrieved with the order of the Commissioner (Appeals) who dismissed the appeal filed by the appellant on the ground that the appeal was presented before him after the stipulated time frame prescribed under Section 85 of the Finance Act, 1994.
On perusal of the findings recorded in the impugned order, the Tribunal found that the adjudication order was received by the appellant on 28.03.2015 and thereafter, the appeal was preferred before the office of the Learned Commissioner (Appeals) on 22.07.2015.
“So far as the time limit of filing of appeal before the Commissioner (Appeals) is concerned, Section 85 of the Act provides that same should be filed within a period of 2 months from the date of receipt of the decision or order passed by the adjudicating authority. Under the proviso appended to sub-Section (3A) of Section 85 of the Act, the Commissioner (Appeals) is empowered to condone the delay or to allow the filing of an appeal within a further period of one month thereafter. On a plain reading of the above statutory provisions, it transpires that the Commissioner (Appeals) is not empowered to condone the delay in late filing of appeal beyond the statutory limit of three months. In this case, since admittedly the appeal was filed beyond three months from the date of receipt of the adjudication order, the Learned Commissioner (Appeals) being a creature under the statute, has rightly dismissed the appeal filed by the appellant,” the Tribunal said.