Custom, Excise & Service Tax Tribunal
M/S. Sai Maruthi Travels vs The Commissioner Of Central Excise on 19 June, 2012
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, BANGALORE SOUTH ZONAL BENCH COURT - I COD, Stay & Appeal No: ST/COD/02/2011 & ST/Stay/06/2011 in ST/06/2011 (Arising out of Order-in-Appeal No: 25/2010 (V-I) ST dated 29.7.2010 passed by the Commissioner of Central Excise & Customs (Appeals), Visakhapatnam.) 1. Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982? No 2. Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? Yes 3. Whether their Lordship wish to see the fair copy of the Order? Seen 4. Whether Order is to be circulated to the Departmental authorities? Yes M/s. Sai Maruthi Travels Appellant Versus The Commissioner of Central Excise Commissionerate-I Visakhapatnam. Respondent
Appearance None for the appellant.
Shri Ganesh Havannur, Additional Commissioner (AR) for the Revenue.
CORAM SHRI P. G. CHACKO, HONBLE MEMBER (JUDICIAL) SHRI M. VEERAIYAN, HONBLE MEMBER (TECHNICAL) Date of Hearing: 19.06.2012 Date of decision: 19.06.2012 MISC. ORDER No._______________________2012 STAY ORDER No._______________________2012 FINAL ORDER No._______________________2012 [Order per: P.G. Chacko]. One of these applications filed by the appellant seeks condonation of delay of 50 days involved in the filing of the appeal. Though, today, there is no representation for the appellant despite notice, we allow this application after hearing the learned Additional Commissioner (AR), having found satisfactory explanation of the delay by the appellant. Next application by the appellant seeks waiver of pre-deposit and stay of recovery. After a perusal of the records and hearing the learned Additional Commissioner (AR), we have found this case fit for summary disposal. Accordingly, after dispensing with pre-deposit, we proceed to deal with the appeal.
2. This appeal is directed against the appellate Commissioners order dismissing the assessees appeal (filed against an adverse order of the original authority) on the ground of limitation. The appellate authority found that the appeal had been filed with a delay of 10 months and noted that it had no power to condone such delay. Consequently, the assessees appeal came to be dismissed.
3. The learned Additional Commissioner (AR) submits that the order-in-original had been received by the party on 28.4.2009 and that the appeal thereagainst was filed on 8.7.2010 with the above delay. These facts are borne on record. The learned Additional Commissioner (AR) also refers to Singh Enterprises vs. CCE, Jamshedpur: 2008 (221) E.L.T. 163 (S.C.) wherein the Honble Supreme Court held that a Commissioner (Appeals) did not have the power to condone any delay of appeal beyond the condonable period of delay prescribed under Section 35 of the Central Excise Act, 1944. The apex court further held that even this Tribunal, High Court, or even the Supreme Court could not condone such delay. In the instant case, the condonable period of delay prescribed under subsection (5) of Section 85 of the Finance Act, 1944 is three months. The assessee should have filed their appeal in the normal course within a period of three months (statutory period of limitation) and should not have delayed the filing of such appeal beyond a further period of three months (condonable period of delay) to be entertained on merits by the Commissioner of Service Tax (Appeals). The delay before the learned Commissioner (Appeals) in this case was as enormous as 10 months and the same could not be condoned as rightly observed by him.
4. In view of the binding case law cited by the learned Additional Commissioner (AR), we dismiss this appeal. The stay application also stands disposed of.
(Pronounced and dictated in open Court) (M. VEERAIYAN) Member (T) (P. G. CHACKO) Member (J) rv ??
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