Delay beyond the statutory condonable period cannot be condoned by appellate authorities.

The appellant received the Order-in-Original dated 27 September 2023 on 4 October 2023.

Under Section 85(3A) of the Finance Act, 1994, the appeal before the Commissioner (Appeals) was required to be filed within two months, with a further one-month condonable period.

The appellant filed the appeal before the Commissioner (Appeals) on 1 March 2024, approximately 116 days after receipt of the Order-in-Original.

The Commissioner (Appeals) dismissed the appeal as time-barred, holding that the delay exceeded the statutory maximum of 90 days and could not be condoned.

Before the Tribunal, the appellant filed an application for condonation of a delay of approximately 402 days in filing the Tribunal appeal. The Tribunal condoned that delay after being satisfied with the explanation offered by the appellant.

Whether the Tribunal could condone the approximately 402-day delay in filing the appeal before it?

Whether the Commissioner (Appeals) had jurisdiction under Section 85(3A) of the Finance Act, 1994, to condone a delay exceeding the statutory period of two months plus one further month?

Whether the appeal filed before the Commissioner (Appeals) approximately 116 days after receipt of the Order-in-Original was maintainable?

Section 85(3A) of the Finance Act, 1994 requires a service-tax appeal before the Commissioner (Appeals) to be filed within two months from receipt of the decision or order, while permitting condonation only for a further period of one month where sufficient cause is shown.

The statutory appellate authority cannot condone delay beyond the expressly prescribed condonable period.

The Tribunal relied on Singh Enterprises v. Commissioner of Central Excise, Jamshedpur, 2008 (221) E.L.T. 163 (S.C.), in which the Supreme Court held that appellate authorities created by statute cannot invoke Section 5 of the Limitation Act, 1963 to condone delay beyond the period permitted by the governing statute; the statutory limit is mandatory.

The appellant’s appeal before the Commissioner (Appeals) was filed on 1 March 2024, whereas the Order-in-Original had been received on 4 October 2023. Thus, the appeal was filed after expiry of the ordinary two-month period and also beyond the additional one-month period that could statutorily be condoned under Section 85(3A).

Applying the principle in Singh Enterprises, the Tribunal held that the Commissioner (Appeals) had no jurisdiction to entertain or condone a delay exceeding 90 days.

Although the Tribunal itself condoned the delay in filing the appeal before it, that did not enlarge the Commissioner (Appeals)’ statutory power or cure the limitation bar applicable to the original appeal.

The Tribunal dismissed the service-tax appeal and disposed of the miscellaneous applications accordingly.