The Bangalore Bench of Customs, Excise and Service Tax Appellate Tribunal (CESTAT) has held that 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.
The bench of Dr. D.M. Misra (Judicial Member) and R Bhagya Devi (Technical Member) has observed 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 appellant/assessee explaining the delay submits that the appellant was suffering from ‘Diabetes mellites with Neuropathy Myalgia’ of low backache resulting into admission in hospital as inpatient from 03.11.2023 to 30.06.2024. In support, he has enclosed a copy of the medical certificate along with an affidavit. It is their contention that due to medical reasons, the appeal could not be filed in time. In view of the reasons explained in the application supported by affidavit and medical certificate, the delay is condoned.
The Commissioner (Appeals) has dismissed the appeal on the ground that the delay in filing the appeals was beyond 90 days i.e. statutory period of 60 days + condonable limit of 30 days as prescribed under Section 85 of Finance Act, 1994.
The appeals were filed before the Commissioner(Appeals) beyond the ninety days i.e. statutory period of 60 days and condonable period of 30 days as prescribed under Section 85 of the Finance Act, 1994.
The tribunal while dismissing the appeal held 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.
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Case Details
Case Title: Shri Santhosh Kumar Shetty Saja Versus The Principal Commissioner of Central Excise and Central Tax, Mangalore Commissionerate
Case No.: Service Tax COD Application No. 20764 of 2024 Service Tax Appeal No. 20026 of 2025
Date: 23.01.2025
Counsel For Appellate: Prabhakaraiah. N.V, Advocate
Counsel For Respondent: Maneesh Akhoury
