By TIOL News Service

CHENNAI, JULY 14, 2016: ASSESSEE's appeal before Commissioner (Appeals) on a dispute relating to Service Tax was rejected on the ground of delay. Assessee filed Writ Petition and the High Court held that order passed by the original authority was on 29.02.2012 and the amendment to Sec 85 of the Finance Act, 1994 came into force on 28.05.2012. Therefore, the petitioner was justified in its contention that three months' time limit prescribed earlier for filing an appeal was available and held that the respondent was not justified in rejecting the appeal on the ground of limitation and directed the Respondent to decide the appeal on merits.

After the Orders of the High Court the Commissioner (Appeals) took up the appeal and on the aspect of limitation, the Commissioner (Appeals) in Order dated 30.11.2015 observed that misplacement of file by advocate cannot be the sufficient cause for condonation of delay of 2 months and 7 days in filing the appeal and rejected the appeal as time barred. Commissioner (Appeals) dismissed the appeal on merits also. This Order was challenged in Writ Petition in the second round. The Writ Court dismissed the Petition on the ground of alternative remedy. The Petitioner is in Writ Appeal against the same.

In Writ Appeal, the High Court observed that when the Writ Court has directed the Commissioner (Appeals) to decide the appeal, it is not open to the appellate authority to examine the cause for delay and reject the appeal as time barred. The Court further held that the directions of the Writ Court made in the earlier Writ Petition ought to have been complied with by registering the appeal and deciding the appeal on merits, instead of re-visiting the cause shown for condonation and rejecting the appeal on the grounds of limitation.

Further, the High Court referred to the decision of the Allahabad High Court in Commissioner of Customs, Central Excise & Service Tax Vs M/s. Monsanto Manufacturer Pvt. Ltd.,- 2014-TIOL-550-HC-ALL-ST and the decision of the Supreme Court in State Bank of India Vs B.S. Agricultural Industries [2009 (5) SCC 121] and held that once appeal is dismissed as time barred, then the authority should not enter into the merits of the case. Thus the Writ Appeal was allowed and Order of Commissioner (Appeals) was set aside and matter was remitted back to Commissioner (Appeals) to decide the issue on merits.

(See 2016-TIOL-1365-HC-MAD-ST)