TMI Blog2024 (1) TMI 39X X X X Extracts X X X X X X X X Extracts X X X X ..... ond the condonable period of Three Months by the Commissioner (Appeals) as prescribed under Section 85 (3) - when admittedly the Appeals have been filed beyond 3 months + 3 months, we do not find that any infirmity has crept in, in the OIAs passed by the Commissioner (Appeals). We hold that he was correct in dismissing the Appeals on this count. Whether the Tribunal is empowered to go into the condonation power of the Commissioner (Appeals) and can it direct him to condone the same by way of any power vested in the Tribunal? - HELD THAT:- Under this Section 35, the Appeal is required to be filed within 60 days and condonation can be granted if it is filed within the next 30 days. This Section 35 of CEA 1944, which is applicable for Central Excise cases, is para materia with Section 85 of the Finance Act 1994, which is applicable for Service Tax cases. While the condonable period was 30 days in case of Central Excise Appeals, the same is for Three (3) months for the Service Tax matters during the period under dispute - The Hon ble Apex Court has unequivocally held that once the condonable period of 30 days is exceeded, the Commissioner (Appeals) has no power to condone the same ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d and approved by the Hon ble Supreme Court in the case of Singh Enterprises Vs CCE Jamshedpur 2008 (221) ELT 163 (SC). This judgement was again followed by the Hon ble Apex Court on several occasions and is being followed by various High Courts and Tribunals consistently till date. He further submits that as on date the Supreme Court s judgement is in force and is binding on all the other authorities and Courts under its jurisdiction. Hence, he prays that the Appeals should be dismissed. 3. The Learned Authorized representative of the Appellant, Sri Rip Das, Chartered Accountant, relies on the observations and directions of the Hon ble Calcutta High Court vide their Order dated 01.12.2022 and submits that this was not followed by this Tribunal while passing the Final Order Nos.75144-75146/2023 dated 22.03.2023. Subsequently considering their fresh WPs, the Hon ble High Court vide their and Order dated 19.06.2023, took note that the directions / observations of the High Court were not considered and the High Court directed the same should be followed. He submits, that in another case, the Appellant had filed refund claims before the Adjudicating Authority for the period Apri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the observations / directions of the High Court as per their Order dated 1.12.2022. 7. Since the details of filing of the Appeals before the Commissioner (Appeals), it is important to consider the same along with the statutory provisions towards time limit set for filing the Appeals. We have to go through the chronological events in the present Appeals. The following Table shows the details of the Orders passed along with the delay in filing the Appeals by the appellant at various stages: SI No. Order-in- Original Date Date of receipt by the appellant Date of receipt of Appeal petition in the office of the Commissioner (Appeals) No. of Months Delay Date of Receipt of OIA Date of filing Appeal before Tribunal No. of days delay in filing Appeal before Tribunal 1. 31/Refund/S T/D- II/Kol/08 dated 13.01.2009 24.01.2009 24.08.2012 43 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 900 days and dismissed the Appeal on this ground itself. 9) Being aggrieved by the Final Orders, the Appellant filed Writ Petitions (WPs) before the Single Member of the Hon ble Calcutta High Court. He did not see any error on the part of the Tribunal in not condoning the delay and dismissed the WPs filed by the appellant. 10) Being aggrieved, the appellant filed WPs before the Divisional Bench of the Hon ble High Court. 11) The Hon ble Calcutta High Court vide its Order dated 1.12.2022, noting the pleading of the appellant that on similar issue of refund, after rejection of the same at lower levels, the Tribunal has passed a favourable order and consequently they were granted refund, held that condonation is to be considered in the light of these facts and directed the Tribunal to hear the Appeals afresh. 12) Consequent to the Hon ble Calcutta High Court s Order dated 1/12/2022, this Tribunal restored the Appeals vide Misc. Order Nos. 75016-75018/2023 dated 30.01.2023. 13) The Restored Appeals were listed for Final Hearing on 12.03.2023 before the Tribunal. 14) The Tribunal, after going through the case history and after noticing that the Appeals before th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 SECTION 86. Appeals to Appellate Tribunal. (1) Save as otherwise provided herein an assessee aggrieved by an order passed by a Principal Commissioner of Central Excise or Commissioner of Central Excise under section 73 or section 83A by a Commissioner of Central Excise (Appeals) under section 85, may appeal to the Appellate Tribunal against such order within three months of the date of receipt of the Order. 10. A careful reading of the above provisions would clarify that while in respect of Appeals before Commissioner (Appeals) to be filed under Section 85, both the time limit for filing the Appeal as well as the condonable period by him are prescribed, in respect of the Appeals to be filed before Tribunal, only the time limit for filing has been prescribed. Thus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 24.08.2012 3. As per the provisions of section 85(3) of Finance Act, 1994, during the relevant period, the appeal should be filed within 3(three) months from the communication of the order or decision against which the appellant prefers to file an appeal. Further, the proviso to section 85(5), ibid empowers the Commissioner (Appeals) to allow the filing of the appeal within a further period of 3(three) months, if the appellant shows sufficient cause, which prevented him to file the appeal within the statutory period of 3 (three) months from the date of receipt of the decision or order of such adjudicating authority. 4. I find that the subject 3(Three) appeals were received in this office after the period of 3 years 7 months and 1 day (three years seven months and one day), 3 years 4 months and 1 day (three years seven months and one day), 3 years 4 months and 13 days (three years four months and thirteen days) and 3 years 1 month and 14 days (three years one month and fourteen days) respectively, along with an application for condonation of delay for late filing of the appeal in respect of all the 3 (three) appeals. The cause of delay mentioned by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... towards delay nor hear the case on merits and pass the order to this effect. 18. In this case, being aggrieved by the OIAs passed by the Commissioner (Appeals) dismissing the appeals on the ground of time bar, the appellant has preferred the present three Appeals before the Tribunal again with a delay of 1900 + days. Admittedly, in terms of Section 86, the Tribunal has unrestricted power to condone the delay. Though there are no specifics as to how the COD is to be considered, the condonation is granted subject to the appellant providing proper reason / explanation for filing the appeal in a delayed manner. The condonation is not a matter of right but is subject to the appellant bringing in proper justification towards the delayed filing. 19. In the present case, the Appellant had filed Miscellaneous Application for Condonation of Delay, stating reasons as under : 1. Being aggrieved by the said Appeal Order passed by the Ld. CCE (A), your petitioner preferred to file this petition before this Honourable Bench and your petitioner humbly prays before your honour s to hear the application on merit only and to set aside the Appeal Order passed by the Ld. CCE(A). Y ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed services. In the order passed by the learned Tribunal dated 4th February, 2021, there is no indication as regard the submission, which were made by the appellant. 23. It speaks of the great legal acumen of the appellant in approaching the Hon ble High Court by disclosing only the part history of the case, effectively concealing the reason for which the Commissioner (Appeals) had dismissed the Appeals, necessitating them to file their Appeals before the Tribunal. This is being discussed in the subsequent paragraphs 24. The Hon ble Calcutta High Court vide their Order dated 9.11.2022, has held as under [Relevant extracts] : 9. The learned Tribunal was of the opinion that there is inordinate delay and no reasonable explanation had been done. The settled legal position is that non benefits by lodging an appeal belatedly unless and until there are mala fides attributed to the appellant for not preferring the appeal petition within the time prescribed under the statute. Likewise, it is also equally well-settled that a person, who has not been diligent and who has slept over the matter, cannot be forwarded by the Courts and Tribunal by exercising discretion in his/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... interfere with the order passed by the Learned Tribunal. For the above reasons, the appeal is allowed. The order passed in the writ petition is set aside. Consequently, the writ petition is allowed and the order passed by the learned Tribunal dated 4th February, 2021 is set aside and the Miscellaneous application Nos. 77827 of 2019 (COD), 77828 of 2019 (COD) and 77829 of 2019 (COD) are restored to the file of the learned Tribunal to be considered afresh. The learned Tribunal is requested to take note of the observations made by us, more particularly the fact that the department for the earlier period, i.e. from April, 2008 to September, 2008 has accepted the classification adopted by the appellant on the specified services. 25. This High Court Order, on its own does not condone the delay in filing the appeal before the Tribunal, but has directed the Tribunal to consider the other facts brought in before the High Court, so as to condone the delay, restore the Appeals and consider the facts brought in by the appellant with regard to subsequent refund claims being granted. As per the directions of the Hon ble High Court, admittedly, this Tribunal vide its Order Nos.75016-75018 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing of the appeal in respect of all the 3 (three) appeals. The cause of delay mentioned by the appellant in all the three applications for condonation of delay are that; their office was under repair and in the process and due to inadvertence the relevant documents including the Orders-in-Original got misplaced in their office; the dealing executive of the Service Tax matters resigned from the service of the Company and left without handing over of charge and due to his absence, the Company was handicapped and could not pursue the matter. However, I find that as per proviso to Section 85(3) of Finance Act, 1994, Commissioner (Appeals) is empowered to condone only a delay of (3) three months, provided the appellant shows sufficient cause, which prevented him to file the appeal within the statutory period of 3 (three) months, whereas in the present appeals the delay is more than 3(three) months. Hence the 3 (three) appeals filed by the appellant are barred by limitation of time and so they are not admissible. 29. As observed supra, the appellant has concealed and misguided the Hon ble High Court, which in its good faith on the belief that the appellant was the victim, orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5 (3) of Finance Act, 1994. Accordingly, I do not find any infirmity with the impugned order and the same is upheld. 5. The appeals filed by the appellants are dismissed as time barred. 31. It is noted from the records that on the date of Final Hearing on 22.3.2023, the Authorized Representative (AR-Appellant) of the appellant, Chartered Accountant Sri Rip Das has appeared argued the case. There is nothing on record to state that he had opposed the view taken by the Bench to dismiss the Appeal on the ground that the Appeals were filed way beyond the condonable period before the Commissioner (Appeals). They have not disputed that the Appeals were filed beyond Six Months [3 months for filing appeal + 3 months available to Commissioner (Appeals) for condonation]. Nor is there any evidence that he has brought to the knowledge of the Tribunal that the observations of the High Court on merits are required to be considered and the same was not considered by the Bench. He was also present when the Order was dictated in the open Court. He did not raise any objection for the reasons cited by the Tribunal for dismissing the Appeals in the Final Orders being dictated by the Hon ble ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ically asked to take the aforesaid observation which was made by the Hon ble Division Bench of this Court in paragraph 13 of the said order to consider the earlier period in question relating to which the department has accepted the classification adopted by the petitioner in his specified services. Considering the facts and circumstances of the case as appears from record and submission of the parties, I am of the view that the aforesaid impugned order is total non-application of mind and is non-speaking order and I am also of the view that no useful purpose will be served in keeping the writ petition pending and the matter should be remanded back to the sales tax authority tribunal to pass a fresh order after taking into consideration the observation made by the Hon ble Division Bench of this Court in paragraph 13 of the aforesaid judgment dated 1st December, 2022. With the observation and direction, these writ petitions being WPA 12130 of 2023, WPA 13253 of 2023 and WPA 13689 of 2023 are disposed of. 34. Considering the above chronological events in the present case, wherein multiple Writ Petitions have been filed before the Hon ble Supreme Court, resulting i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y bring out the Legislative intent of allowing restricted power to the Commissioner (Appeals) and unrestricted power to the Tribunal. Further the amendment carried out to Section 85 by way of 85(3A), vide the Finance Bill 2012 wherein the power to condone has been reduced from 3 months to 1 month, once again shows that it is a considered, deliberated, specific intent of the Legislature to prescribe the specific time limit to condone the delay by the Commissioner (Appeals). 40. Coming to the facts of the present Appeals, there is absolutely no dispute and also clearly admitted by the Appellant that they have filed the Appeals before the Commissioner (Appeals), after more than 43 months, 40 months and 37 months, way beyond the condonable period of Three Months by the Commissioner (Appeals) as prescribed under Section 85 (3). Noting the same, he has held as under in the OIAs: 4. I find that the subject 3(Three) appeals were received in this office after the period of 3 years 7 months and 1 day (three years seven months and one day), 3 years 4 months and 1 day (three years seven months and one day), 3 years 4 months and 13 days (three years four months and thirteen day ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation 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 exclusion of Section 5 of the Limitation Act. The Commissioner and the High Court were ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... can be granted. It further holds that, even Supreme Court cannot be vested with the power to condone this delay before the Commissioner (Appeals), since any such action would render the specific provision otiose. 47. This judgment of Supreme Court, which is in force as on date, has been relied on several occasions in several subsequent Supreme Court and High Court judgements. Some of the these cases discussed below : 2010 (257) E.L.T. 3 (S.C.) AMCHONG TEA ESTATE Vs UNION OF INDIA 4. The appellant herein challenged the order dated 9-7-2003 passed by the Deputy Commissioner, Central Excise, Gauhati by filing an appeal before the Commissioner (Appeals). The said appeal was filed on 6-102004 and by an order dated 15-10-2004, the Commissioner (Appeals) rejected the application filed by the petitioner seeking condonation of delay on the ground that the appeal is barred under the provisions of Section 35 of the Central Excise Act. 5. The aforesaid order of the Commissioner (Appeals) was challenged before the learned Single Judge of the Gauhati High Court. By an order dated 3-6-2008, the learned Single Judge held that sufficient ground is not made out ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Vs GUJARAT ENERGY TRANSMISSION CORPORATION. LTD. ORS [Judgement dated 1st March 2017] [Three Member Bench] [Relevant extracts] 2. The present appeal was presented before the Registry of this Court on 7.2.2008. An office note recorded that the appeal was barred by 71 days. The appeal was listed before the Bench on 29.1.2010 on which date this Court condoned the delay and admitted the appeal. When the matter was taken up for hearing today, Ms. Ranjeeta Ramachandran, learned counsel appearing for the 1st respondent raised a preliminary objection that this Court could not have condoned the delay of 71 days in view of the language employed in Section 125 of the Act and further the condonation of delay by this Court was done without notice to the respondent and hence, deserves to be recalled and as a sequitor, the appeal has to be dismissed without any adverting to the same on merits. 3. Section 125 of the Act reads as follows:- 125. Appeal to Supreme Court.--(1) Any person aggrieved by any decision or order of the Appellate Tribunal, may, file an appeal to the Supreme Court within sixty days from the date of communication of the decision or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aspect needs to be adverted to. Mr. Agrawal submits that when the delay in review was condoned by this Court, the appellant should not be permitted to raise a preliminary objection. Suffice it to say, it is not an application under Section 5 of the Limitation Act which is to be entertained by the Court. We are singularly concerned with entertaining of an application for condonation. If the delay is statutorily not condonable, the delay cannot be condoned. 50. In the above case, the issue was whether the Supreme Court, for the Appeals preferred before it, whether it can condone the delay of over 60 days of condonable period. After going through the Section 125 of the Electricity Act 2003, it held that it has no power to do so and held that even Section 5 of the Limitation Act, cannot overcome the time limit of 60 days specified under Section 125. In this case, mere delay of 71 days [11 days over the specified condonation of period of 60 days] was considered enough to deny the condonation and it was held that the issue need not be heard on merits. 51. From the above judgements of Hon ble Supreme Courts discussed supra, it is crystal clear that Commissioner (Appeals) h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Appeals) within 4 months, i.e well the time limit of 6 months. b) They have filed the Appeal before the Tribunal within 3 months from the date of OIA, which is well within the time limit. c) Therefore, in that case, the Commissioner (Appeals) did not dismiss the Appeal on account of time limit, but had rejected the same on merits. d) Accordingly, before the Tribunal there was no issue about the Appeal being dismissed on account of time-bar by the Commissioner (Appeals) unlike in the present case. e) The Tribunal had to decide the Appeal on merits alone. f) The Tribunal went into the merits and finding that proper justification has not been done, remanded the matter back to the Adjudicating authority. 57. Since in that case, the matter was being contested purely on merits both at Commissioner (Appeals) level and at the Tribunal level, unlike in the present case, the Tribunal took up the appeals and decided the issue on merits. On the other hand, the Appellant has filed the present Appeals with a delay of 37 to 43 months and they were rejected by the Commissioner (Appeals) on that count alone. Even before the Tribunal, the Appeals were filed with a dela ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... service of the Company and left without handing over of charge and due to his absence, the Company was handicapped and could not pursue the matter. 62. Therefore, their explanation that their dealing executive had resigned and left without handing over the charge and his absence cannot be taken on face value as they themselves had filed an Appeal in another case on 9.7.2009. At-least till that date, this person would have been available. 63. Having filed the Appeal before Commissioner (Appeals) with such huge delay, which was dismissed, still they did not take any steps to file the Appeal before Tribunal within the stipulated period of 90 days. Once again they filed the Appeals before the Tribunal with a delay of over 1900 days. This time even the lame excuses of their office being repaired, their executive resigning etc., were also not given. It was simply stated that since no one stands to gain by delayed fining, the condonation should be granted. This is almost like claiming the condonation as a matter of right . 64. As has been observed in the cited Supreme Court s judgements, even a mere delay of 11 days and delay of 20 months from the time stipulated has be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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