TMI Blog2015 (9) TMI 1466X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 under Section 85(3A) has to be strictly construed as any other interpretation would defeat the very object of enacting the said provision. If the prayer of the appellant is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 4th December, 2014 and the issuance of the recovery notice dated 20th February, 2015, all passed and/or issued by various authorities under the Finance Act, 1994 and the Service Tax Rules, 1995. It is noticed that the initial order, being the order-in-original, was passed on 31st December, 2012 by the Additional Commissioner, Service Tax, Kolkata upon giving adequate opportunity of hearing to the petitioner and after recording cogent reasons in support of his decision whereby a demand of service tax including CESS was confirmed for a sum of ₹ 4,69,141/- together with penalty for a sum of ₹ 2,34,571/-. It is noticed that some leniency was also shown by the said authority while dropping a demand of ₹ 6,86,841/-. Neverth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r (Appeals) had not been vested with the power to condone the delay beyond the period of one month in addition to the statutory limit of two months as prescribed under section 85 of the 1994 Act. In such a factual backdrop, the writ petitioner has now approached this Court. The learned advocate appearing on behalf of the petitioner relies on a judgment of the Supreme Court rendered in the case of State of U.P. v. Mohd. Nooh reported in AIR 1958 Supreme Court 86. He submits that the initial order passed by the adjudicating authority was so patent and loudly obtrusive, it was liable to be interfered with by the Commissioner (Appeals) and even if the Commissioner (Appeals) did not have any statutory power to condone the delay, the High Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to and relying upon section 85 of the Finance Act, 1994 and the judgment of the Supreme Court in the case of M/s. Singh Enterprises (supra). For reasons stated above, the writ petition is liable to be dismissed and is accordingly dismissed. 4. It is submitted by Mr. Sen that though the Additional Commissioner, Service Tax, Kolkata had no jurisdiction to pass the order dated 31st December, 2012, however the demand of service tax was confirmed, interest was directed to be paid and penalty was imposed. Thereafter, by order dated 7th October, 2013, the statutory appeal preferred by the appellant was dismissed by the Commissioner (Appeals) as time-barred, which by order dated 4th December, 2014 was confirmed by CESTAT. Submission is in v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arma v. Union of India Ors.], the learned Single Judge was justified in dismissing the writ petition. Assuming the Additional Commissioner, while passing the order-in-original, had wrongly assumed jurisdiction, the petitioner, if aggrieved, should have filed the statutory appeal within the time limit as prescribed under the law. Having not filed the statutory appeal within the period of limitation, subsequently the petitioner cannot challenge the said order. 6. As seen under Section 85(3A) an appeal has to be presented within two months. However, an appeal can be presented beyond two months but within one month, if it can be shown that the appellant was prevented by sufficient cause from presenting the appeal within two months. So an a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ipulating the period of limitation under Section 85(3A) has to be strictly construed as any other interpretation would defeat the very object of enacting the said provision. If the prayer of the appellant is allowed, it would encourage the litigants to approach the High Court in the Writ Jurisdiction by filing a writ petition at any point of time which would open a floodgate of litigations making Section 85(3A) otiose. Hence, in view of the aforesaid discussion in the background of the statutory provisions, we respectfully differ from the principle of law laid down in Paragraph 9(iii) in M/s. Adhunik Power Transmission (supra) specifically relied on by the appellant. The law laid down in the judgment in Raza Textitles (supra) is not applica ..... X X X X Extracts X X X X X X X X Extracts X X X X
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