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TMI Blog2016 (6) TMI 1002X X X X Extracts X X X X X X X X Extracts X X X X ..... the ground that the period of limitation has to be calculated, taking into account, the date of impugned order and not the date on which, the appeal was preferred. Adverting to the submissions, a learned single Judge of this Court in W.P.No.21811 of 2013, dated 13.08.2013, passed the following orders, "4. There is no dispute that prior to 28.05.2012, three months time was given to file appeal against the order passed by the Statutory Authority. There will be a grace time of three months after the expiry of initial three months to file the appeal along with an application to condone the delay. That was the position prior to 28.05.2012. However, the position has undergone a sea change after Finance Bill, 2012, thereby reducing the period to file appeal from three months to two months and the grace period from three months to one month. The first respondent proceeded as if the date on which the appeal was preferred should be taken as the crucial date. Since the appeal was preferred after the Amendment came into force and having found that the appeal was preferred beyond the period of three months, it was rejected. 5. The materials available on record clearly show that the order p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... expiry of first normal 3 months period and after expiry of further period of 2 months and 7 days. Hence, the appeal falls under proviso to Section 85 ibid which provides that where sufficient cause was shown, an appeal can be allowed to be presented within a further period three months. ........ 9 (v). In the present case, misplacement by a learned advocate cannot be the sufficient cause for condonation of delay of 2 months and 7 days in filing the appeal since the law officers are expected to be more vigilant and alert in complying with the provisions of law. Therefore, the appeal is liable for rejection as time barred." 5. The appellate authority, vide order, dated 30.11.2015, has dismissed the appeal both on delay and merits. The abovesaid order passed by the Commissioner of Service Tax (Appeals-II) in Order-in-Appeal No.349/2015 (STA-II), dated 30.11.2015, is challenged in W.P.No.5501 of 2016. Though before the Writ Court, the appellant has contended that earlier, in W.P.No.21811 of 2013, dated 13.08.2013, this Court has already directed the Appellate Authority to register the appeal and therefore, the Commissioner of Service Tax (Appeals-II), ought not to have dism ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rejected the appeal, as time barred. When the said order, dated 24.07.2013, was tested in W.P.No.21811 of 2013, the Writ Court, vide order, dated 13.08.2013, has categorically held that the Commissioner of Central Excise (Appeals), was not justified in rejecting the appeal, on the ground of limitation. The writ Court has also directed him to register the appeal, if the same is otherwise in order and decide it, as per the law. 9. Reasons assigned for condonation of two months and seven days, are that the papers were handedover to the learned counsel; they are misplaced, traced out and thereafter, an appeal was filed. Question to be considered by this Court is that when the Writ Court, vide order, dated 13.08.2013, has already directed the Commissioner of Central Excise (Appeals), to register the appeal, would it be open to him, to examine the bona fides or the sufficiency of the cause shown. In the instant case, what the Commissioner of Central Excise (Appeals), has done is that, he has examined the sufficiency of the cause shown and held that misplacement of the papers by the learned Advocate, cannot be a sufficient cause for condonation of delay of two months and seven days, in f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd, at Paragraph 12, the Hon'ble Supreme Court in State Bank of India's case (cited supra), held as follows:- "12. As a matter of law, the consumer forum must deal with the complaint on merits only if the complaint has been filed within two years from the date of accrual of cause of action and if beyond the said period, the sufficient cause has been shown and delay condoned for the reasons recorded in writing. In other words, it is the duty of the consumer forum to take notice of Section 24A and give effect to it. If the complaint is barred by time and yet, the consumer forum decides the complaint on merits, the forum would be committing an illegality and, therefore, the aggrieved party would be entitled to have such order set aside." Applying the ratio of the Supreme Court in State Bank of India v. B.S.Agricultural Industries reported in 2009 (5) SCC 121, the Allahabad High Court in Commissioner of Customs, Central Excise & Service Tax v. M/s.Monsanto Manufacturer Pvt. Ltd., reported in 2014-TIOL-550-HC-ALL-ST, answered the question of law in favour of the assessee. 13. Judgment of the Supreme in State Bank of India's case (cited supra), followed in Commissioner of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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