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TMI Blog2015 (9) TMI 1466X X X X Extracts X X X X X X X X Extracts X X X X ..... oppose. Therefore, the delay in filing the appeal is condoned. Let the appeal be registered, if it is otherwise in form. 2. Since necessary documents are on record, by consent of Mr. Sen and Mr. Bharadwaj, the appeal is treated as on day's list and is taken up for hearing. 3. This appeal has been preferred against the judgment and order dated 25th June, 2015 passed in W.P. No. 526 of 2015 (Bengal Investments Limited v. Assistant Commissioner (TARC) Service Tax-I & Ors.) whereby the writ petition was dismissed by the learned Single Judge holding, inter alia, as under : "The writ petitioner has approached this Court essentially challenging the orders dated 31st December, 2012, 7th October, 2013, 4th December, 2014 and the issua ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f receipt of the order. Since he had no power to condone the delay of more than one month, he proceeded to observe that the appeal was liable to be dismissed and dismissed the appeal, being time barred. The writ petitioner, thereafter, went up before the Appellate Tribunal, being the Customs, Central Excise and Service Tax Appellate Tribunal, East Regional Bench at Kolkata. The Tribunal while referring to section 85 of the Finance Act, 1994 and relying on the judgment of the Supreme Court rendered in M/s. Singh Enterprises v. Commissioner of Central Excise, Jamshedpur & Ors. reported in 2008 (221) E.L.T. 163 (S.C.) proceeded to dismiss the writ petitioner's appeal observing that the Commissioner (Appeals) had not been vested with the power ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s granted and is supported with cogent reasons. All relevant facts have been taken into consideration and by no stretch of imagination it can be held that the said order is so patent and loudly obtrusive, which will warrant an interference by the writ Court. That apart and in any event, there is no infirmity of reasoning in respect of the subsequent order passed by the Commissioner of Central Excise (Appeals), Appeal-I, Kolkata dated 7th October, 2013 and finally, the order passed by the Customs, Excise and Service Tax Appellate Tribunal, East Regional Bench, Kolkata dated 4th December, 2014, affirming the order of Commissioner of Central Excise (Appeals), Appeal-I, Kolkata, while referring to and relying upon section 85 of the Finance Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt had discharged the constitutional obligation under Article 366(29A)(d) by paying West Bengal VAT and as the pre-condition of Section 65(105)(zzzzj) itself was not satisfied and as the appellant has already transferred the right of the machinery for all times to come, the Additional Commissioner had erred in passing the order. 5. Mr. Bharadwaj, learned advocate for the respondent, submits that since the appellant had preferred statutory appeal on merits under Section 85 of the Finance Act, 1994 beyond the period of limitation, in view of the principle of law laid down in the unreported judgment delivered on 16th August, 2015 in MAT 425/2015 [2016 (331) E.L.T. 365 (Cal.)] [Satish Kumar Sharma v. Union of India & Ors.], the learned Si ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hould have the power to decide an issue. If the authority lacks jurisdiction, an order passed is non est in the eye of law. Since lack of jurisdiction in deciding an issue goes to the root of the matter, a writ petition can be filed questioning the jurisdiction of an authority to pass an order. So as under Section 85(3A) the maximum time limit to prefer statutory appeal is three months, if the petitioner-company was aggrieved by the order dated 31st December, 2012 on the ground that the authority lacked jurisdiction, being conscious of its rights, it should have filed the writ petition challenging the said order within the said prescribed period of limitation. It is to be borne in mind that the provision stipulating the period of limitation ..... X X X X Extracts X X X X X X X X Extracts X X X X
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