Achuthan Thami Vs Commissioner of Service Tax (CESTAT Mumbai)
The appeal challenged an Order-in-Appeal dismissing the appellant’s first appeal solely on the ground of limitation. The Commissioner (Appeals) held that the appeal had been filed beyond the prescribed limitation period without any application seeking condonation of delay. The principal issue before the Tribunal was whether such dismissal was sustainable when the Order-in-Original itself incorrectly stated the statutory period for filing the appeal.
The Order-in-Original was received by the appellant on 15.12.2012. The first appeal was filed on 13.03.2013, within three months of receipt of the order but beyond the statutory period of two months. No application for condonation of delay accompanied the appeal, and the appellant did not appear for personal hearing before the Commissioner (Appeals). Consequently, the appeal was dismissed solely on the ground that it had been filed beyond limitation without a condonation application.
The appellant submitted that the omission to file a condonation application was directly caused by the preamble to the Order-in-Original, which expressly stated that an appeal under Section 85 of the Finance Act, 1994 could be filed within three months from the date of communication of the order. According to the appellant, this positive misstatement created the impression that the appeal filed within three months was within time, leaving no occasion to seek condonation of delay. It was further contended that a litigant should not suffer due to the mistake or misstatement of the adjudicating authority and that the appellant had legitimately relied upon the statement contained in the official order.
