M/S. Industrias Del Recambio India ... vs Commissioner Of Service Tax, Chennai

(Arising out of Order-in-Appeal No. 367/2013 (MST) dated 20.12.2013 passed by the Commissioner of Central Excise (Appeals), Chennai)

M/s. Industrias Del Recambio India (Pvt.) Ltd. Appellant

Vs.

Commissioner of Service Tax, Chennai Respondent

Appearance

Shri N. Ramasamy, Consultant for the Appellant Shri R. Subramaniyan, AC (AR) for the Respondent

CORAM

Honble Shri R. Periasami, Technical Member Honble Shri P. K. Choudhary, Judicial Member

Date of Hearing / Decision: 16.07.2015

Final Order No. 40776 / 2015

Per R. Periasami

After dispensing with the stay application the appeal itself is taken up for disposal.

2. The issue relates to demand of service tax under reverse charge mechanism. Against the Order-in-Original dated 22.1.2013, the appellant preferred appeal on 25.9.2013 before the Commissioner (Appeals) along with application for condoning the delay of 172 days. The lower appellate authority dismissed their appeal on limitation of time as there is no power to condone the delay beyond the period of 90 days stipulated under section 85(3A) of Finance Act.

3. Heard both sides.

4. The learned consultant submits that they have paid the entire amount of service tax and submitted copies of TR6 challan. In the present case, the appellant filed appeal before Commissioner (Appeals) beyond 90 days and the period of delay is 172 days. Whereas, as per the proviso to sub-section (3A) of Section 85 of Finance Act, the Commissioner (Appeals) may allow further period of 30 days if the appeal is not filed within two months from the date of receipt of Order-in-Original. In this regard, the Honble Supreme Court in the case of Singh Enterprises Vs. CCE, Jamshedpur  2008 (221) ELT 163 (SC) has categorically held that Commissioner (Appeals) and the Tribunal has no power to condone the delay beyond the stipulated period. Paragraphs 8 to 10 of Apex Court order is reproduced as under:-

8. The?Commissioner of Central Excise (Appeals) as also the Tribunal being creatures of Statute are vested with jurisdiction to condone the delay beyond the permissible period provided under the Statute. The period upto which the prayer for condonation can be accepted is statutorily provided. It was submitted that the logic of Section 5 of the Indian Limitation Act, 1963 (in short the Limitation Act) can be availed for condonation of delay. The first proviso to Section 35 makes the position clear that the appeal has to be preferred within three months from the date of communication to him of the decision or order. However, 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, this clearly shows that the appeal has to be filed within 60 days but in terms of the proviso further 30 days time 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. The language used makes the position clear that the legislature intended the appellate authority to entertain the appeal by condoning delay only upto 30 days after the expiry of 60 days which is the normal period for preferring appeal. Therefore, there is 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 days period.

9. Learned counsel? for the appellant has emphasized on certain decisions, more particularly, I.T.C.s case (supra) to contend that the High Court and this Court in appropriate cases condoned the delay on sufficient cause being shown.

10. Sufficient?cause is an expression which is found in various statutes. It essentially means as adequate or enough. There cannot be any straitjacket formula for accepting or rejecting the explanation furnished for delay caused in taking steps. In the instant case, the explanation offered for the abnormal delay of nearly 20 months is that the appellant concern was practically closed after 1998 and it was only opened for some short period. From the application for condonation of delay, it appears that the appellant has categorically accepted that on receipt of 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. I.T.C.s case (supra) was rendered taking note of the peculiar background facts of the case. In that case there was no law declared by this Court that even though the Statute prescribed a particular period of limitation, this Court can direct condonation. That would render a specific provision providing for limitation rather otiose. In any event, the causes shown for condonation have no acceptable value. In that view of the matter, the appeal deserves to be dismissed which we direct. There will be no order as to costs.

4. The ratio of the above apex Court order is squarely applicable to the present case. Therefore, respectfully following the decision of the Honble Supreme Court, we find that the lower appellate authority has rightly dismissed their appeal as time bar and there is no merit in the appeal filed by the appellant. Accordingly, the appeal along with the stay application and miscellaneous application are dismissed.

(Dictated and pronounced in open court)

(P.K. CHOUDHARY) (R. PERIASAMI) Judicial Member Tehnical Member

Rex

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