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2015 (9) TMI 1466 - CALCUTTA HIGH COURT

2015 (9) TMI 1466 - CALCUTTA HIGH COURT - 2016 (42) S.T.R. 817 (Cal.) , [2016] 92 VST 283 (Cal) - Whether the appellant herein, the writ petitioner, can challenge the order dated 31st December, 2012 passed by the Additional Commissioner in the writ jurisdiction on the ground of patent illegality and want of jurisdiction after expiry of the period of limitation prescribed in Section 85(3A) of the Finance Act, 1994 - Held that:- it is a settled proposition of law that an authority under the State .....

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ty 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 allowed, it would encourage the litigants to approach the High Court .....

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ed advocate for the appellant submits that the delay of two days in filing the appeal may be condoned, which Mr. Bharadwaj, learned advocate for the respondent, in his usual fairness, does not 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 .....

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assed 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 .....

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ound that was taken was that the concerned person to whom work was entrusted for service tax matters was absent due to his ill health for a long period of time. Written submission was also advanced by the petitioner and finally on 7th October, 2013, the Commissioner of Central Excise (Appeals), Appeal-I, Kolkata, passed an order observing that the appellant (being the writ petitioner) had filed the appeal after more than six months from the date of receipt of the order. Since he had no power to .....

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entral 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 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 o .....

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erfere. On the other hand, the learned advocate representing the Central Excise authorities refers to and relies upon the same decision which was referred to and relied upon by the Customs, Excise and Service Tax Appellate Tribunal, East Regional Bench, Kolkata. In the facts and circumstances of the instant case what is required to be considered is whether the initial order passed by the Additional Commissioner, Service Tax, Kolkata dated 31st December, 2012 can be held to be so patent and loudl .....

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irmity 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, 1994 and the judgment of the Supreme Court in the ca .....

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was dismissed by the Commissioner (Appeals) as time-barred, which by order dated 4th December, 2014 was confirmed by CESTAT. Submission is in view of the law laid down by the Supreme Court in Raza Textiles Ltd. v. Income-Tax Officer, Rampur : 87 ITR 539 (SC), and in Arun Kumar & Ors. v. Union of India & Ors. : (2006) 286 ITR 89 (SC), and also in Union of India v. Jagadish Prasad Jalan Nandalal : 2012 (4) CHN (Cal) 1 = 2012 (286) E.L.T. 525 (Cal.), and in the unreported judgments deliver .....

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nder 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 o .....

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t 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 appeal can be presented at the most within three months. 7. In the instant case, as no .....

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and want of jurisdiction after expiry of the period of limitation prescribed in Section 85(3A) of the Finance Act, 1994. 9. It is a settled proposition of law that an authority under the State should 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 a .....

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