TMI Blog2022 (4) TMI 1210X X X X Extracts X X X X X X X X Extracts X X X X ..... ho desires to challenge the Order-in-Original in appeal shall have to deposit in terms of provisions contained in Section 35F of the Central Excise Act. The requirement to make such deposit is to be fulfilled for the purpose of entertainment of appeal and not filing of the appeal - whenever the Legislature desired to make a pre-condition that certain amount is required to be deposited before the Appeal is filed, it is so provided in the legislation. Thus, in terms of Section 85 of Chapter-V of the Finance Act read with Section 35F of the Central Excise Act, so long as the appeal is not disposed of/dismissed/rejected by the Appellate Authority, it is open to the party to deposit the conditional amount pending the disposal of the appeal. In the present appeal, the petitioner having not placed any material evidencing compliance of conditions for entertainment of appeal, this Court, therefore, confirms the Order-in-Appeal on this score. Time Limitation - HELD THAT:- The instant case falls within the ambit of sub-section (3A) of Section 85 of the Act which without admitting any ambiguity hints at that an appeal can be presented within two months from the date of receipt of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inability to file appeal within the prescribed time, no indulgence could be shown to the petitioner-assessee at all. The case law in cited by the petitioner is misplaced. The order of the Commissioner (Appeals) dated 27.01.2022 rejecting the appeal on the ground that the appeal has been filed belatedly beyond the period stipulated under Section 85 of the Act without complying with the condition stipulated for entertainment of appeal under Section 83 of Chapter-V of the Finance Act, 1994 read with Section 35F of the Central Excise Act, 1994 does not warrant indulgence in exercise of power conferred under Article 226 of the Constitution of India - Petition dismissed. - W.P.(C) No. 5389 of 2022 - - - Dated:- 7-4-2022 - JUSTICE JASWANT SINGH AND JUSTICE M.S. RAMAN Petitioner Mr. Ramesh Chandra Jena, Advocate for the petitioner Opposite Parties : Mr. Radheshyam Chimanka, Senior Standing Counsel (GST, Central Excise Customs) for opposite parties ORDER 1. This matter is taken up by virtual/physical mode. 2. Questioning the legality of Order dated 27.01.2022 passed by the Commissioner (Appeals), Bhubaneswar (opposite party No.1) in Appeal No. 08/ST/BBSR-G ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eal is time barred under the provisions of Section 85 of the Act as the Appellate Authority is not conferred with power to condone the delay in filing the appeal beyond one month after the expiry of normal period specified under sub-section (3A) of Section 85. 5. The petitioner has laid much stress on the financial hardship as a cause for non-fulfillment of requirement of pre-deposit in terms of Section 83 of the Act read with Section 35F of the Central Excise Act, 1944. Relying on the decision of Hon ble Supreme Court in the case of Kissan Gramodyog Sansthan Vrs. Commissioner of Central Excise, 2015 (319) ELT 370 (SC) = (2015) 10 SCC 629 whereby the Appellate Authority-Tribunal was directed to restore appeal for hearing on merits by accepting amount of pre-deposit, Mr. Ramesh Chandra Jena, Advocate for the petitioner has urged that the Appellate Authority be directed to restore the appeal in terms of aforesaid ruling. 5.1. So far as delay is concerned, the petitioner has attributed to complexities in law. The petitioner has laid emphasis on the manpower supply service vis vis cargo handling service. The petitioner, being a contractor for supply of daily wage labourers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed fact that the petitioner has not deposited amount of Tax after specified rule as statutorily required to do under Section 83 of the Act read with Section 35F of the Central Excise Act. 8.2. Section 83 of Chapter-V of the Finance Act, 1994 stands as follows: 83. Application of certain provisions of Act 1 of 1944.- The provisions of the following sections of the Central Excise Act, 1944, as in force from time to time, shall apply, so far as may be, in relation to service tax as they apply in relation to a duty of excise: sub section (2A) of Section 5A, sub section (2) of Section 9A, 9AA, 9B, 9C, 9D, 9E, 11B, 11BB, 11C, 12, 12A, 12B, 12C, 12D, 12E, 14, 14AA, 15, 15A, 15B, 31, 32, 32A to 32P, 33A, 34A, 35EE, 35F, 35FF, to 35O (both inclusive), 35Q, 35R, 36, 36A, 36B, 37A, 37B, 37C, 37D, 38A and 40. 8.3. Aforesaid provision contained in Section 83 of the Act requires inter alia compliance of provisions of Section 35F of the Central Excise Act, 1944 in relation to service tax. 8.4. Section 35F of the Central Excise Act, 1944 has been amended by way of substitution vide the Finance (No. 2) Act, 2014 (No. 25 of 2014), published in Gazette of India, Extraordinar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en and a half per cent of the duty, in case where duty or duty and penalty are in dispute, or penalty, where such penalty is in dispute, in pursuance of a decision or an order passed by an officer of Central Excise lower in rank than the Principal Commissioner of Central Excise or Commissioner of Central Excise; (ii) against the decision or order referred to in clause (a) of sub section (1) of Section 35B, unless the appellant has deposited seven and a half per cent of the duty, in case where duty or duty and penalty are in dispute, or penalty, where such penalty is in dispute, in pursuance of the decision or order appealed against; (iii) against the decision or order referred to in clause (b) of sub-section (1) of Section 35B, unless the appellant has deposited ten per cent of the duty, in case where duty or duty and penalty are in dispute, or penalty, where such penalty is in dispute, in pursuance of the decision or order appealed against; Provided that the amount required to be deposited under this section shall not exceed rupees ten crores; Provided further that the provisions of this section shall not apply to the stay applications and appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le Court held as follows: In any case the principle laid down in Matajog Dubey Vrs. H.C. Bhari Dobey, 1955 (2) SCR 925 states with clarity that so long as there is no express inhibition, the implied power can extend to doing all such acts or employing such means as are reasonably necessary for such execution. The reliance on the principle laid down in Mohammed Kunhi, (1969) 2 SCR 65 cannot go to the extent, as concluded by the High Court, of enabling the Appellate Authority to override the limitation prescribed by the statute and go against the requirement of pre deposit. The Hon ble Supreme Court in the said case being Tecnimont Pvt. Ltd. Vrs. State of Punjab, 2019 SCC OnLine SC 1228 further observed as follows: 30. As stated in P. Laxmi Devi, (2008) 4 SCC 720 and Har Devi Asnani, (2011) 14 SCC 160 , in genuine cases of hardship, recourse would still be open to the concerned person. However, it would be completely a different thing to say that the Appellate Authority itself can grant such relief. As stated in Shyam Kishore, (1993) 1 SCC 22 any such exercise would make the provision itself unworkable and render the statutory intendment nugatory. 8.7. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t it is the law . Even if the statutory provision causes hardship to some people, it is not for the Court to amend the law. A legal enactment must be interpreted in its plain and literal sense as that is the first principle of interpretation. 10. In Martin Burn Ltd. Vrs. The Corporation of Calcutta, AIR 1966 SC 529 , the Hon ble Supreme Court while dealing with the same issue observed as under: A result flowing from a statutory provision is never an evil. A Court has no power to ignore that provision to relieve what it considers a distress resulting from its operation. A statute must of course be given effect to whether a Court likes the result or not. 11. Similar view has been reiterated by the Hon ble Supreme Court in The Commissioner of Income tax, West Bengal I, Calcutta Vrs. M/s. Vegetables Products Ltd., AIR 1973 SC 927. 12. It is the settled legal position that taxing statute must be construed strictly. (vide Manish Maheshwari Vrs. Assistant Commissioner of Income tax ors., AIR 2007 SC 1696; Southern Petrochemical Industries Co. Ltd. Vrs. Electricity Inspector ETIO ors., AIR 2007 SC 1984; and Bhavya Apparels (P) Ltd. anr. Vrs. Union of India ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e same cannot be equated to a vested right. A mere chance of convincing the Appellate Authority to exercise the discretion for the grant of a total waiver is no vested right. The amendment, in our considered view, did not take away a right vested, but merely made a chance divested. What has now gone, is not the right, but the chance or hope. Therefore, the first contention of the learned Senior counsel for the petitioner is liable to be rejected. 33. There is another line of judgments taking a view that right of appeal is a creation of statute and the legislature is competent to determine the conditions on which an appeal would lie. These are not the cases of amending or repeal of a statute, therefore, such judgments are not applicable to the questions arising in the present application. 8.9. This Court, in Jindal Stainless Ltd. Vrs. State of Odisha, reported in (2012) 54 VST 1 (Ori) delved into the question as to whether the condition precedent for pre-deposit of tax or interest or both in dispute in addition to payment of admitted tax for entertaining an appeal as provided under Section 77(4) of the Odisha Value Added Tax Act, 2004 read with proviso to Rule 87 of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of ₹ 10 Crores (1st proviso to Section 35F) makes the provision of new Section 35F more balanced; (h) Change in the provision of unamended Section 35F and the newly substituted Section 35F is mere procedural; (i) By virtue of substituted Section 35F the collection of revenue in case appeals are being preferred, will be in a systematic manner; Thus, the classification has reasonable nexus with the aforesaid object, sought to be achieved by the Act. No legislation relating to tax can be declared to be illegal, much less unconstitutional, on the ground of being harsh, on the anvil of Article 14 of the Constitution of India otherwise, every tax payer will feel every legislation relating to taxation to be a harsh one. The broader classification is to be seen and not the micro classification. Against such lucid analysis of amended provisions in Section 35F vis vis provisions as they stood prior to amendment being challenged before the Hon ble Supreme Court in S.L.P.(C) No. 31297 of 2016 [Satya Nand Jha Vrs. Union of India], the same came to be dismissed vide Order dated 07.11.2016. 8.11. The position as of now stands can be summarized as: prior to 06.08 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l be filed before the Appellate Authority subject to conditions stipulated therein. Thus, from the above, it is evident that whenever the Legislature desired to make a pre-condition that certain amount is required to be deposited before the Appeal is filed, it is so provided in the legislation. Thus, in terms of Section 85 of Chapter-V of the Finance Act read with Section 35F of the Central Excise Act, so long as the appeal is not disposed of/dismissed/rejected by the Appellate Authority, it is open to the party to deposit the conditional amount pending the disposal of the appeal. 8.13. Upon cumulative reading of legal position as settled in Indian Oil Corporation Vrs. Odisha Sales Tax Tribunal, Cuttack, 2009 (Supp.1) OLR 928 = 109 (2010) CLT 355 and Satya Nand Jha Vrs. Union of India, 2016 SCC OnLine Jhar 2323 = (2017) 2 AIR Jhar R 619 = (2016) 4 JBCJ 392 (HC), this Court does not see any reason to interfere with the view expressed by the Commissioner (Appeals), Bhubaneswar. For the reason that by the date of entertainment of appeal no evidence is placed on record by the petitioner-appellant to show that it had complied with the condition hedged for entertainment of appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hs 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 on which the Finance Bill, 2012 receives the assent of the President: Provided that the Commissioner of Central Excise (Appeals) may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of three months, allow it to be presented within a further period of three months. (3A) An appeal shall be presented within two months from the date of receipt of the decision or order of such adjudicating authority, made on and after the Finance Bill, 2012 receives the assent of the President, relating to service tax, interest or penalty under this Chapter: Provided that the Commissioner of Central Excise (Appeals) may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of two months, allow it to be presented within a further period of one month. (4) The Commissioner of Central Excise (Appeals) shall hear and determine the appeal and, subject to the provisions of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mitation Act can be invoked for condonation of delay was rejected by the Court and observed: 30. In the earlier part of our order, we have adverted to Chapter VI A of the Act which provides for appeals and revisions to various authorities. Though Parliament has specifically provided an additional period of 30 days in the case of appeal to the Commissioner, it is silent about the number of days if there is sufficient cause in the case of an appeal to the Appellate Tribunal. Also an additional period of 90 days in the case of revision by the Central Government has been provided. However, in the case of an appeal to the High Court under Section 35 G and reference application to the High Court under Section 35 H, Parliament has provided only 180 days and no further period for filing an appeal and making reference to the High Court is mentioned in the Act. 32. As pointed out earlier, the language used in Sections 35, 35 B, 35 EE, 35 G and 35 H makes the position clear that an appeal and reference to the High Court should be made within 180 days only from the date of communication of the decision or order. In other words, the language used in other provisions makes the positi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of the legislation, namely, to provide special limitation for filing an appeal against the decision or order of the Tribunal and proviso to Section 125 will become nugatory. 9.6. In Popat Bahiru Govardhane Vrs. Special Land Acquisition Officer, (2013) 10 SCC 765, it is succinctly laid down as follows: 16. It is a settled legal proposition that law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes. The Court has no power to extend the period of limitation on equitable grounds. The statutory provision may cause hardship or inconvenience to a particular party but the Court has no choice but to enforce it giving full effect to the same. The legal maxim dura lex sed lex which means the law is hard but it is the law , stands attracted in such a situation. It has consistently been held that, inconvenience is not a decisive factor to be considered while interpreting a statute. A result flowing from a statutory provision is never an evil. A Court has no power to ignore that provision to relieve what it considers a distress resulting from its operation. (See : The Martin Burn Ltd. v. The Cor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itution of India: 16. In the backdrop of these facts, the central question is: whether the High Court ought to have entertained the writ petition filed by the respondent? As regards the power of the High Court to issue directions, orders or writs in exercise of its jurisdiction under Article 226 of the Constitution of India, the same is no more res integra. Even though the High Court can entertain a writ petition against any order or direction passed/action taken by the State under Article 226 of the Constitution, it ought not to do so as a matter of course when the aggrieved person could have availed of an effective alternative remedy in the manner prescribed by law (see Baburam Prakash Chandra Maheshwari vs. Antarim Zila Parishad now Zila Parishad, Muzaffarnagar, AIR 1969 SC 556; and also Nivedita Sharma vs. Cellular Operators Association of India Ors. (2011) 14 SCC 337. In Thansingh Nathmal Ors. vs. Superintendent of Taxes, Dhubri Ors. AIR 1964 SC 1419, the Constitution Bench of this Court made it amply clear that although the power of the High Court under Article 226 of the Constitution is very wide, the Court must exercise self imposed restraint and not entertain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... achinery so set up. 17. We may usefully refer to the exposition of this Court in Titaghur Paper Mills Co. Ltd. Anr. Vs. State of Orissa Ors., (1983) 2 SCC 433, wherein it is observed that where a right or liability is created by a statute, which gives a special remedy for enforcing it, the remedy provided by that statute must only be availed of. In paragraph 11, the Court observed thus:- 11. Under the scheme of the Act, there is a hierarchy of authorities before which the petitioners can get adequate redress against the wrongful acts complained of. The petitioners have the right to prefer an appeal before the Prescribed Authority under sub section (1) of Section 23 of the Act. If the petitioners are dissatisfied with the decision in the appeal, they can prefer a further appeal to the Tribunal under sub section (3) of Section 23 of the Act, and then ask for a case to be stated upon a question of law for the opinion of the High Court under Section 24 of the Act. The Act provides for a complete machinery to challenge an order of assessment, and the impugned orders of assessment can only be challenged by the mode prescribed by the Act and not by a petition under Artic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 42 is a conglomeration and repository of the entire judicial powers under the Constitution, to do complete justice to the parties. Even while exercising that power, this Court is required to bear in mind the legislative intent and not to render the statutory provision otiose. In a recent decision of a three Judge Bench of this Court in Oil and Natural Gas Corporation Limited vs. Gujarat Energy Transmission Corporation Limited Ors. 13, the statutory appeal filed before this Court was barred by 71 days and the maximum time limit for condoning the delay in terms of Section 125 of the Electricity Act, 2003 was only 60 days. In other words, the appeal was presented beyond the condonable period of 60 days. As a result, this Court could not have condoned the delay of 71 days. Notably, while admitting the appeal, the Court had condoned the delay in filing the appeal. However, at the final hearing of the appeal, an objection regarding appeal being barred by limitation was allowed to be raised being a jurisdictional issue and while dealing with the said objection, the Court referred to the decisions in Singh Enterprises vs. Commissioner of Central Excise, Jamshedpur Ors., (2008) 3 SCC 7 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pellate Authority in the absence of depositing amounts of tax/duty and penalty demanded by the adjudicating authority. However, in absence of compliance of mandatory requirement of Section 83 of Chapter-V of the Finance Act, 1994 read with Section 35F of the Central Excise Act, 1944 (as amended) by the time appeal is taken up for entertainment, there is no scope for the Appellate Authority to dispense with such a condition. Reliance on the decision of the Supreme Court in Kisaan Gramodyog Sansthan Vrs. Commissioner of Central Excise, 2015 (319) ELT 370 = (2015) 10 SCC 629 by the petitioner-assessee is misplaced. In the said case, after disposal of Special Leave Petition in connection with dismissal of appeal for want of pre-deposit, the petitioner had complied with the condition by making pre-deposit and under such peculiar facts and circumstances of the case , the Hon ble Supreme Court of India Court directed the Tribunal to accept the pre-deposit amount as deposited by the appellant therein and hear the appeal on merits . This is not the position in the case at hand. The instant petitioner has not demonstrated peculiarity in its case. 10.1. Thus, since the statutory pe ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
