TMI Blog2021 (3) TMI 542X X X X Extracts X X X X X X X X Extracts X X X X ..... re, the date of receipt of the order or decision appealed against becomes very relevant. Limitation period of two months can be extended for a further period of one month if the appellate authority is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the limitation period of two months. While there is no dispute to the proposition that section 5 of the Limitation Act, 1963 would stand excluded when the statute itself provides the limitation period for filing of appeal as well as the period beyond the limitation period within which the delay in filing the appeal can be condoned. But the observation of respondent No.1 that the provisions of section 85 of the Finance Act, 1994 and section 35 of the Central Excise Act, 1944 are pari-materia may not be correct - From a comparison of section 35 of the Central Excise Act, 1944 and section 85(3A) of the Finance Act, 1994, as amended, we have already noticed the subtle difference in language in the two provisions which may have a considerable significance in the facts of the present case. While under section 35 the period of limitation is 60 days plus 30 days that is at the most 90 days, und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s quashing of order dated 27.02.2020 passed by respondent No.1 and further seeks a direction to respondent No.1 to decide the appeal filed by the petitioner on merit. 1.1. Be it stated that being aggrieved by the order-in-original dated 08.07.2019 passed by the Assistant Commissioner of Goods and Services Tax, Aurangabad Urban Division whereby demand of service tax to the extent of ₹ 15,03,571.00 was confirmed along with levy of interest and penalty, petitioner preferred appeal before the Commissioner (Appeals), Central Goods and Services Tax (CGST) and Central Excise, Nashik i.e., respondent No.1. By the impugned order dated 27.02.2020, the application for condonation of delay in filing the appeal was rejected. Consequently, the related appeal was dismissed as being time barred without entering into the merits. It is this order which is under impugnment in the present proceeding. 2. We have heard Mr. Banhatti, learned counsel for the petitioner and Mr. Mishra, learned counsel for the respondents. 3. Facts lie within a narrow compass in as much as we are not called upon to enter into the merit of the claim of the petitioner. 4. Petitioner is a private limited comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sited an amount of ₹ 1,12,768.00 being 7.5% of the service tax demand of ₹ 15,03,571.00 which is a pre-requirement for filing such appeal. 12. Having made the pre-deposit as above, petitioner dispatched its appeal against the order-in-original to respondent No.1 on 02.12.2019 by speed post which was received by respondent No.1 on 04.12.2019. Limitation period for filing such appeal is two months extendable by another one month, total three months. The three months period had lapsed on 30.11.2019, which was a Saturday. Therefore, the appeal was dispatched by the petitioner immediately on the following Monday i.e., on 02.12.2019 being the next working day. Petitioner also sent an application dated 05.12.2019 to respondent No.1 requesting the latter to condone the delay in presenting the appeal, if any. 13. By the impugned order dated 27.02.2020, respondent No.1 held that petitioner had received the order-in-original on 30.08.2019. Petitioner had the normal period of limitation for filing the appeal upto 30.10.2019. This period could be extended by another month if delay could be satisfactorily explained. Adding this one month, the limitation period would stand exte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the reply affidavit, petitioner has reiterated the averments and grounds urged in the writ petition. Referring to the time-frame computed in ground A of the writ petition, it is stated that on the basis of such computation, appeal filed by the petitioner through speed post would be within time. Petitioner has also referred to section 10 of the General Clauses Act, 1897 (for short the General Clauses Act hereinafter) and submits that the last date of the extended period of limitation was 30.11.2019, which was a Saturday. Therefore, petitioner was legally within its right to file the appeal on the immediately following working day i.e., Monday (02.12.2019), with 01.12.2019 being a holiday on account of being a Sunday which would be within the limitation period. Petitioner has asserted that contention of the respondents that 04.12.2019 would be construed to be the date of filing the appeal as on that date the appeal was received would not be a correct interpretation of the factual and legal position. Reference has been made to several judicial pronouncements in support of the contention that the appeal was filed within the extended limitation period. 17. Learned counsel for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ched on 02.12.2019 was within limitation. Respondent No.1 fell in error in construing the date of receipt of the appeal i.e., 04.12.2019 as the date of filing the appeal. The appeal being filed within the extended period of limitation i.e., on 02.12.2019, the delay condonation application was filed on 05.12.2019 but respondent No.1 completely misdirected himself and rejected the said application by taking the view that respondent No.1 has no jurisdiction to condone the delay thereby rejecting the related appeal as being time barred. 17.2. Referring to the decision of the Allahabad High Court in Commissioner of Customs and Central Excise Vs. Ashok Kumar Tiwari, 2015 (37) STR 727 , he expands his arguments by submitting that the day when the order was received by the petitioner would have to be excluded. If this is so then the limitation of two months would commence from 31.08.2019 and would continue till 31.10.2019. If the extended period of limitation of one month is added to this, it would mean that the same would expire on 01.12.2019. 01.12.2019 being a Sunday, the next working day i.e., 02.12.2019 would be construed to be the last day of the extended period of limitation. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the office of the adjudicating officer by speed post on 29.08.2019. It was received by the petitioner on 30.08.2019. 20.2. Petitioner dispatched the appeal against the said order-in-original to respondent No.1 by speed post in the correct address on 02.12.2019. Respondent No.1 received the appeal on 04.12.2019. Petitioner also sent application for condonation of delay on 05.12.2019, which was received by the office of respondent No.1 on 09.12.2019. 21. Since the matter relates to levy of service tax, filing of appeal is governed by section 85 of the Finance Act, 1994, as amended. Section 85 reads as under:- 85 - (1) Any person aggrieved by any decision or order passed by an adjudicating authority subordinate to the Principal Commissioner of Central Excise or Commissioner of Central Excise may appeal to the Commissioner of Central Excise (Appeals). (2) Every appeal shall be in the prescribed form and shall be verified in the prescribed manner. (3) An appeal shall be presented within three months from the date of receipt of the decision or order of such adjudicating authority, relating to service tax, interest or penalty under this Chapter made before the date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resented within two months from the date of receipt of the decision or order of the adjudicating authority. As per the proviso, Commissioner of Central Excise (Appeals) may allow such appeal to be presented within a further period of one month if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the prescribed period of two months. 22.1. A careful analysis of sub-section (3A) of section 85 would go to show that the appeal has to be presented within two months from the date of receipt of the decision or order of the adjudicating authority. However, the said limitation period of two months can be extended for a further period of one month if the appellate authority is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of two months. 23. Before we analyze the provision relating to filing of appeal in matters of central excise, which at the first blush appears to be pari-materia to section 85(3A), what is noticeable in section 85(3A) is that the word 'presented' is used and not 'filed'. In other words, the appeal is to be presented and not file ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uthority and the high court that there was no power to condone the delay after expiry of the extended period of 30 days. Resultantly, the application for condonation of delay was rejected and the appeal was dismissed as being time barred. Relevant portion of the impugned order dated 27.02.2020 passed by respondent No.1 is extracted hereunder:- 18.1. On perusal of the above referred provision, it is seen that the time limit for filing an appeal in Service Tax matters is governed in terms of provisions of Section 85(3A) of the Finance Act, 1994, wherein the time specified for filing an appeal is two months from the date of receipt of the impugned order. However, if the Commissioner is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of two months, he can allow it to be presented within a further period of one month. In other words, the appeal has to be filed within two months but in terms of the proviso further one month time can be granted by the appellate authority to entertain the appeal. The proviso to sub-section (3A) of section 85 makes the position crystal clear that the appellate authority has no power ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the logic of Section 5 of the Indian Limitation Act, 1963 (in short the 'Limitation Act') can be availed for condonation of delay. The first proviso to Section 35 makes the position clear that the appeal has to be preferred within three months from the date of communication to him of the decision or order. However, if the Commissioner is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of 60 days, he can allow it to be presented within a further period of 30 days. In other words, this clearly shows that the appeal has to be filed within 60 days but in terms of the proviso further 30 days time can be granted by the appellate authority to entertain the appeal. The proviso to subsection (1) of Section 35 makes the position crystal clear that the appellate authority has no power to allow the appeal to be presented beyond the period of 30 days. The language used makes the position clear that the legislature intended the appellate authority to entertain the appeal by condoning delay only upto 30 days after the expiry of 60 days which is the normal period for preferring appeal. Therefore, there is complete e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which no court shall take cognizance of any offence punishable under the said act unless complaint thereof is made within three months from the date on which the alleged commission of the offence came to the knowledge of the inspector. In that context, Andhra Pradesh High Court examined the meaning of the word month : whether it would mean 30 days in which case the complaint should be filed within 90 days from the date of knowledge. After referring to section 3(35) of the General Clauses Act, it was held that the word month would mean a calendar month and by extension the term three months as appearing in section 106 of the Factories Act, 1948 would only mean a period of three calendar months. 27.2. Again, in Bibi Salma Khatoon Vs. State of Bihar, AIR 2001 SC 3596 , Supreme Court dealt with the provisions of section 16(3) of the Bihar Land Reforms Act, 1961 which provided that benefits under the said act could be availed of if an application is made within three months of the date of registration of the documents of transfer. Posing the question as to what was meant by the word month , Supreme Court held that British calendar would mean Gregorian calendar. It was held ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s amended, or the rules framed thereunder i.e., the Service Tax Rules, 1994 for dispatching or presentation of appeal by speed post or by post. 29. In Bhikha Lal Vs. Munna Lal, AIR 1974 Allahabad 366 (Full Bench), it was held that if the creditor and the debtor reside at two different places served by postal system, from the very fact that the creditor makes a demand through the post, an authority to the debtor to meet his obligation through the post is implied. In the facts of that case, it was held that as the appellants demanded arrears of rent by letter sent through post, it would amount to an authorization or invitation to the respondent to make the payment through post. 29.1. We are in respectful agreement with the views expressed by the Full Bench of Allahabad High Court. That being the position, we hold that there was no infirmity on the part of the petitioner in dispatching the appeal by post; speed post in the present case as the order challenged in the appeal was sent to the petitioner by speed post. 30. Coming back to section 85(3A), we find that while prescribing the period of limitation, Parliament has used the expression ''within two months from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 897 require to exclude the first day. 32. This position was also explained by a Division Bench of the Allahabad High Court in Ashok Kumar Tiwari (supra) where it was held that the day on which the order was received by the assessee would have to be excluded in view of the provisions of section 9 of the General Clauses Act. 32.1. At this stage we may also mention that in sub-section (3A) of section 85, while the word from is used to indicate commencement of the limitation period, the word to is conspicuous by its absence to indicate capping of the limitation period. 33. There is one more aspect which we would like to deal with before we revert back to the calculation of the limitation period and this is that respondent No.1 has construed the date of receipt of the appeal by speed post as the date of presentation of the appeal i.e., 04.12.2019 and therefore, it was held that the appeal was beyond the period of limitation. 34. In Jhabboo Lal Kesara Rolling Mills (supra), a Division Bench of the Allahabad High Court took the view that if the appeal was sent by registered post to the appellate authority at the correct address within the period of limitation but was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovided that nothing in this section shall apply to any act or proceeding to which the Indian Limitation Act, 1877 applies. (2) This section applies also to all Central Acts and Regulations made on or after the fourteenth day of January, 1887. 37.1. The object of this provision was succinctly explained by the Supreme Court in Harinder Singh Vs. S. Karnail Singh, AIR 1957 SC 271 wherein their Lordships stated that the object of this section is to enable a person to do what he could have done on a holiday, on the next working day. Where, therefore, a period is prescribed for the performance of an act in a court or office, and that period expires on a holiday, then according to this section the act should be considered to have been done within that period, if it is done on the next day on which the court or office is open. For section 10 to apply the requirement is that there should be a period prescribed and that period should expire on a holiday. Section 10 itself indicates that this provision is for computation of time. Therefore, if the limitation for filing an appeal or the extended period for filing an appeal expires on Sunday but it is filed on Monday, then by ope ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of the High Court was set aside and the writ petition was dismissed. 39.1. Evidently, the provision of law and computation of the period of limitation in M/s. Glaxo Smith Kline Consumer Health Care Limited (supra) and in the present case are quite different. Issues arising for consideration are also different since in this case we are examining the legality and validity of the order of respondent No.1 in rejecting the appeal of the petitioner as being time barred. 40. Thus upon thorough consideration of the matter, we hold that dispatch of the appeal by the petitioner on 02.12.2019 was within the extended period of limitation of one month and, therefore, without considering the prayer for condonation of delay of the petitioner, respondent No.1 ought not to have rejected the appeal as being time barred by taking the ground that he had no jurisdiction to condone the delay beyond the extended limitation period of one month. 41. Consequently, we set aside the order dated 27.02.2020 passed by respondent No.1 and remand the matter back to respondent No.1 to consider afresh the application of the petitioner for condonation of delay in filing the related appeal. 42. Writ pet ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
