By TIOL News Service

MUMBAI, AUG 31, 2014 : A Service Tax demand of Rs.4,85,174/- was confirmed against the appellant and their appeal was dismissed as time-barred by the Commissioner (A) on the ground that the appeal was filed on 17/02/2014 in respect of an adjudication order received on 18/11/2013 and, therefore, the appeal has been filed after the expiry of 91 days from the date of communication of the order.

The appellant is before the CESTAT but chose not to appear for the hearing although they were informed.

The Revenue representative supported the order of the Commissioner(A).

The Bench after going through the submissions noted that the short question was whether the appeal had been filed in time or not &observed-

++ As per Section 85(3A) of the FA, 1994, an appeal shall be presented within two months from the date of receipt of the decision or order and if the appellant is prevented by sufficient cause from presenting the appeal within the aforesaid period of two months, the appellate authority can condone the delay and allow the appeal to be presented within a further period of one month. Thus, the total time period of 3 months is available to the appellant to file the appeal.

++ Since the appellant received order on 18/11/2013, the period of two months for filing the appeal expired on 18/01/2014 and the condonable grace period expired on 18/02/2014. In the present case, the appeal has been filed on 17/02/2014.

++ In their COD application, the appellant had pleaded that they were awaiting decision on the same issue in respect of other Branches, and, therefore, the delay occurred and this reason adduced cannot be said to be unsatisfactory.

++ The General Clauses Act defines a month as a British Calendar month and it is not defined in terms of number of days. Therefore, in the present case, the appeal has been filed in time i.e. within the condonable period.

Holding that the period of delay is not beyond the condonable period and the appellate authority should have condoned the delay, the Bench remanded the matter to the appellate authority for a decision on merits.

Thus, the appeal was allowed by way of remand.

In passing : See What is a MONTH? in DDT 2322 & 2014-TIOL-156-ITAT-AHM-SB.

(See 2014-TIOL-1635-CESTAT-MUM)