CESTAT, CHENNAI BENCH
Gopinath & Sharma
Commissioner of Service Tax, Chennai
Final Order No. 685 OF 2012
STAY ORDER NO. 511 OF 2012
Application no. ST/S/222 OF 2012
Appeal No. ST/294 OF 2012
June 12, 2012
D.N. Panda, Judicial Member
Appellant’s main grievance in this appeal is that learned first appellate authority should not have dismissed its appeal on the ground of limitation. The appellant on receipt of the Order-in-Original on 30th December, 2009 filed the appeal on 12.3.2010 in the Office of the Commissioner of Service Tax, Chennai inadvertently without filing the same before the learned Commissioner (Appeals) on that date. Learned Commissioner observing that the appeal came before him on 2.1.2012 held that the same was barred by limitation being delayed by more than two years and dismissed the same.
2. Learned Counsel appearing on behalf of the appellant submitted a copy of a title sheet of some case indicating that appeal before the Commissioner of Central Excise (Appeals) was filed in the Office of Commissioner of Service Tax, Chennai and an acknowledgement by rubber stamp was obtained on that paper. Relying on the said paper he submitted that even ST-4 form which was addressed to Appellate Authority along with the memorandum of appeal was filed in the Office of Commissioner of Service Tax, Chennai and that was acknowledged on 12.3.2010. When the appellant got recovery notice, it could know that its appeal had not reached to the appropriate forum for which it filed a fresh appeal before the Commissioner of Central Excise (Appeals) on 2.1.2012. This confusion resulted in delay of more than two years and that was not considered by the Commissioner (Appeals). He dismissed the appeal as time-barred. He further relied on a letter dated 26.12.2011 (Ref: P.No.38 of the appeal folder) to submit that a letter by M/s. Gopinath and Sharma, the appellant addressing to the learned Commissioner (Appeals) stated that appeal was filed in time in the Office of Commissioner of Service Tax and such a mistake was rectified by filing a fresh appeal before learned Commissioner (Appeals). Therefore, considering the acknowledgement aforesaid issued by Office of Commissioner of Service tax, the delay was condonable and appeal was due to be heard. Learned counsel further relied on the decision of the Tribunal in the case of Premchand Gokaldas v. CST [Final Order No. A/2038/2009-WZB/Ahd., dated 27-8-2009] submit that filing of the appeal in a wrong office requires such office to transfer the appeal to the right forum and delay is condonable.
3. Learned DR. appearing on behalf of the Revenue supports the order of the learned Commissioner (Appeals) and submits that there is no evidence of filing of appeal by the appellant before the Commissioner of Service Tax when there was no evidence of filing available in the office of that authority. The appellant has made frivolous claim of seeking remedy at a wrong forum to bypass the mandate of statute on limitation. If prayer of the appellant is allowed that shall create a wrong precedent for future and shall encourage frivolous appeals to come up after limitation endangering interest of Revenue and wasting time of public officers. Therefore, both the stay application and the appeal filed by the appellant should be dismissed.
4. Heard both sides and perused the records.
5. The dispute having been confirmed to aforesaid limited issue, dispensing requirement of pre-deposit appeal was taken up for hearing with the consent of both sides.
6. It is an admitted fact on record that the appellant received the Order-in-Original on 30th December, 2009 and filed appeal before learned Commissioner (Appeals) on 2.1.2012. So also admittedly, there was a delay of more than two years in seeking appeal remedy before the learned first appellate authority. According to section 85 of the Finance Act, 1994, learned first appellate authority has no power to condone delay beyond the statutory period of three months plus the discretionary period of another three months under the proviso to sub-section 3(3) of section 85 of Finance Act, 1994. Law is also laid down in this regard by Apex Court in the case of Singh Enterprises v. CCE 2008 (221) ELT 163 holding that a statutory authority is not vested with power to exercise any discretion beyond the period stipulated by law. Accordingly, any appeal coming to his record beyond prescribed period of limitation fails to be maintainable being barred by limitation. Therefore, learned Commissioner (Appeals) was right to confine his jurisdiction to section 85(3) of the Finance Act, 1994 to dismiss the appeal of the appellant. It is also settled law that no court can compel a statutory authority to act beyond statutory mandate. Accordingly, Tribunal has no power to pass an order to direct the first appellate authority to exercise his jurisdiction beyond his authority.
7. Appellant relied on the decision of the Tribunal in the case of Premchand Gokaldas (supra). It would be proper to state that the decision in that case was made on the perception that appeal was on record in a wrong fora. But the present case is not a case of existence of an appeal on record of a wrong forum. Law is well settled that statutory authorities acting under the Finance Act, 1994 are not Civil Courts except to the limited extent of jurisdiction of Civil Courts conferred on them. Section 129C(8) of the Customs Act, 1962 has made provision in this regard. Civil Court being governed by the rules of the High Courts and Supreme Court, those courts exercise power to transfer proceeding before them to appropriate Civil Court. But statutory authority lack such power in the absence of any express provision in law conferring jurisdiction on them in this behalf. If a litigation of the aforesaid nature is directed to go to the file of public officer to entertain a frivolous claim, that shall be a bonus to an indolent who has scanty regard to law and all along was negligent to pursue its remedy before appropriate forum.
8. We are conscious that dismissal of the appeal referred to above shall make the appellant remediless under the Act. But equally we have no power to drag Revenue to litigation reviving a litigation which came to an end with the passage of time. There is nothing on record to show bona fide of appellant’s averments when record of learned Commissioner of Service Tax does not contain the appeal papers said to have been filed in his office under an acknowledgement. This handicaps the appellant to lead the matter further. Thus the appellant fails to succeed.
9. Also section 5 of the Limitation Act does not apply to the proceedings under the Finance Act, 1994 since that has prescribed limitation and three months statutory period plus another three months discretionary period was prescription of law, learned appellate authority has no power to take shelter of section 5 of the Limitation Act at all. The appellant also fail on such count. Accordingly, appeal is liable to be dismissed. We order accordingly.
10. Before parting with this order, we may add that this appeal has come from a professional firm of Chartered Accountants and it is surprising how such a casual approach to law was made by the professionals.