2017 (6) TMI 721 - HC - Service Tax

Appeal Dismissed: Time-Barred Appeal Upheld, Commissioner Lacks Jurisdiction

The court upheld the tribunal's decision, confirming that the appeal was time-barred and that the Commissioner (Appeals) had no jurisdiction to condone ... Jurisdiction of Commissioner (Appeals) - power to condone delay - case of Revenue is that the Commissioner (Appeals) is not empowered to condone any delay beyond the condonable period of one additional month after the allowed two months for filing the Appeal - Clause 85(3A) of the FA, 1994 - Held that: - we are in complete agreement with the view taken by the Allahabad High Court in the case of Ashok Kumar Tiwari [2014 (11) TMI 388 - ALLAHABAD HIGH COURT], where it was held that Once it is held that the Tribunal did, indeed, have a discretionary jurisdiction, as a first appellate body against the order of the Commissioner (Appeals), this Court would be slow to interfere, particularly having regard to the ambit of the jurisdiction of the Tribunal under Section 86(1) of the Act of 1994 - it cannot be said the learned Commissioner (Appeals) has committed any error in rejecting the Appeal on the ground of limitation by observing that beyond the condonable period of one month after the prescribed period of two months to prefer the Appeal he has no jurisdiction to condone the delay beyond the condonable period. Considering Section 85(3A) of the Finance Act, 1994 commissioner (appeals) has no jurisdiction to condone the delay beyond the condonable period of one month. Appeal dismissed - decided against Revenue. Issues Involved:1. Whether the Customs, Excise, and Service Tax Appellate Tribunal was right in rejecting the appeal based on the interpretation of the term 'month'.2. Whether the appeal was filed within the prescribed time limit.3. Whether the dismissal of the appeal on technical grounds rather than on merits was justified.Detailed Analysis:Issue 1: Interpretation of the Term 'Month'The appellant argued that the term 'month' in Clause 85(3A) of the Finance Act, 1994 should be interpreted as a 'period of 30 days,' equating 'three months' to '90 days.' The appellant relied on the Division Bench decision in Commissioner of Income-tax-I Vs. Arvind Mills Ltd., which interpreted 'month' as 30 days under Section 244A of the Income Tax Act. The appellant also cited decisions from the Calcutta High Court and Bombay High Court supporting this interpretation.The respondent countered by citing the Supreme Court's decision in State of H.P. and Anr Vs. M/s. Himachal Techno Engineers and Anr, which held that 'three months' refers to calendar months, not 90 days. The respondent also referenced the Allahabad High Court's decision in Commissioner of Customs & Central Excise, Allahabad Vs. Ashok Kumar Tiwari, which interpreted 'three months' as calendar months under Section 85(3) of the Finance Act, 1994.The court agreed with the respondent, citing that the term 'month' in Section 85(3A) should be interpreted as a calendar month per Section 3(35) of the General Clauses Act, 1897. The court emphasized that the legislature's use of 'three months' and 'one month' in different contexts indicates an intention to refer to calendar months, not days.Issue 2: Filing Within Prescribed Time LimitThe appellant received the Order-in-Original on 05/02/2015, making the normal filing deadline 04/04/2015. The Commissioner (Appeals) could condone a delay up to 04/05/2015. The appellant filed the appeal on 06/05/2015, beyond the condonable period. The court noted that the Commissioner (Appeals) correctly rejected the appeal as time-barred, as he had no jurisdiction to condone delays beyond the additional month allowed.Issue 3: Dismissal on Technical GroundsThe appellant argued that the tribunal's dismissal on technical grounds of delay, rather than on merits, was unjust. The court, however, found no merit in this argument, stating that the statutory provisions are clear, and the tribunal's decision was in accordance with the law. The court reiterated that the interpretation of 'three months' as calendar months is consistent with legislative intent and judicial precedents.Conclusion:The court upheld the tribunal's decision, confirming that the appeal was time-barred and that the Commissioner (Appeals) had no jurisdiction to condone the delay beyond the prescribed period. The court dismissed the tax appeal, answering the questions of law in favor of the revenue and against the assessee.