ADHUNIK POWER TRANSMISSION LTD. Vs. UNION OF INDIA

JUDGEMENT

(1.) THIS writ petition has been preferred against the order passed by the Commissioner (Appeals) Central Excise & Service Tax, Ranchi, dated 13.08.2012. As there was no application for condoning the delay along with the memo of appeal, the delay was not condoned. Against this order, the present writ petition has been preferred. Counsel appearing for the petitioner submitted that Commissioner (Appeals) has all powers to condone the delay of 90 days. The delay of three months can be condoned by the Commissioner (Appeals), over and above the limitation period in preferring the appeal is three months. The order in original passed by the authority under the Service Tax Act was received on 18.11.2010. The memo of appeal was filed by this petitioner before the Commissioner (Appeals) on 02.03.2011. Thus, within 104 days the appeal was preferred. In fact, this appeal ought to have been preferred within the period of three months, and, there was a delay of 14 days. Office of the Commissioner (Appeals) had not pointed out this defect, and, therefore, petitioner has not filed delay of condonation application. It is further submitted by the learned counsel for the petitioner that no opportunity to file delay of condonation application was given by the office of the Commissioner (Appeals) to the petitioner. These aspects of the matter have not been properly appreciated by the Commissioner (Appeals), while dismissing the appeal preferred by this petitioner vide its order dated 13.08.2012.

(2.) COUNSEL for the Union of India submitted that the petitioner is not a poor illiterate person, rather it is a company limited, and all the knowledge is being injected by the efficient lawyer, and, therefore, it is out of place to say that Commissioner (Appeals) should have pointed out to this petitioner that the petitioner must file delay of condonation application. It is submitted by the respondents that the petitioner should know what is Section 85 of the Finance Act, 1994. Delay of condonation application ought to have been preferred by the petitioner, and hence, there being no delay of condonation application, the Commissioner (Appeals) cannot presume the reasonable reasons, and, therefore, the delay could not be condoned by the Commissioner (Appeals) and thus, no error has been committed by the Commissioner (Appeals) in dismissing the appeal for want of delay of condonation application. Having heard learned counsel for both the sides and looking to the facts and circumstances of this case, we see no reason to entertain this writ petition mainly for the following reasons: - -