2024 (2) TMI 1135 - SCH - Service Tax

Delay in filing Finance Act s.85(3A) appeal after pursuing writ petition-High Court time excluded; 33-day delay condoned.

The dominant issue was whether the appellate authority could condone a 33-day delay in filing an appeal under s.85(3A) of the Finance Act, 1994, after the ... Condonation of delay on sufficient cause - limitation for filing appeal under proviso to sub section 3A of Section 85 of the Finance Act, 1994 - exclusion of time during pendency of writ where liberty granted to pursue statutory remedy - restoration of appeal for adjudication on meritsLimitation for filing appeal under proviso to sub section 3A of Section 85 of the Finance Act, 1994 - condonation of delay on sufficient cause - exclusion of time during pendency of writ where liberty granted to pursue statutory remedy - Whether the delay in filing Appeal No.752 ST/2018 before the Commissioner (Appeals) should be condoned under the proviso to sub section 3A of Section 85 of the Finance Act, 1994 by excluding the period during which the writ petition was pending before the High Court and liberty was granted to pursue the statutory remedy. - HELD THAT: - The Adjudicating Authority's order dated 28.12.2017 was received on 08.01.2018. The appellant instituted W.P. No.5452/2018 before the High Court and subsequently withdrew that petition on 12.03.2018 with express liberty to file the statutory appeal. The period during which the matter was pending before the High Court and in particular the interval up to the order granting liberty to pursue the statutory remedy must be excluded for computation of limitation. When that period (from commencement of the High Court proceedings until 12.03.2018) is excluded, the appeal filed on 11.04.2018 falls within the additional one month period available under the proviso to sub section 3A. Applying these principles, the Court held that the interest of justice required condonation of the delay and that the Appellate Commissioner ought to have condoned the delay in the circumstances disclosed.Delay in filing the appeal is condoned under the proviso to sub section 3A of Section 85 of the Finance Act, 1994 by excluding the period during which the writ was pending with liberty to pursue the statutory remedy.Restoration of appeal for adjudication on merits - Whether Appeal No.752 ST/2018 should be restored to the file of the Commissioner (Appeals) for decision on merits after condonation of delay. - HELD THAT: - Having condoned the delay, the Court found it appropriate to set aside the orders of the Appellate Commissioner, the Tribunal and the High Court insofar as they refused to entertain the appeal on the ground of delay. The appeal is therefore restored to the Commissioner (Appeals), Bhopal, for consideration and disposal on merits. The Court directed that the appeal be considered on its own merits and disposed of as expeditiously as possible.Appeal No.752 ST/2018 is restored to the file of the Commissioner (Appeals) for adjudication on merits.Final Conclusion: The orders of the Appellate Commissioner, the Tribunal and the High Court dismissing or rejecting the appellant's remedy on the ground of delay are set aside; the delay is condoned under the proviso to sub section 3A of Section 85 of the Finance Act, 1994 and Appeal No.752 ST/2018 is restored to the Commissioner (Appeals), Bhopal, for fresh disposal on merits. Issues involved:The case involves the dismissal of a writ petition by the Madhya Pradesh High Court, subsequent appeals before various authorities, and the issue of delay in filing an appeal under Section 85 of the Finance Act, 1994.Judgment Summary:Dismissal of Writ Petition and Subsequent Appeals:The appellant's claims for refund were rejected by the Assistant Commissioner, leading to a series of appeals and petitions. The High Court dismissed the writ petition, prompting the appellant to appeal further to the Customs, Excise and Service Tax Appellate Tribunal. The Tribunal also dismissed the appeal, leading to the current appeal before the Supreme Court.Contentions and Arguments:The appellant argued that the delay in filing the appeal should have been condoned based on the provisions of Section 85 of the Finance Act, 1994. The appellant contended that the delay was due to the liberty granted by the High Court to explore alternative remedies, and thus, the delay should be excused.Court's Analysis and Decision:The Supreme Court considered the timeline of events and found that the appellant had a valid reason for the delay in filing the appeal. The Court noted that the High Court's order granting liberty to seek alternative statutory remedies should be taken into account. As the appeal was filed within the extended period allowed by the proviso to Section 85 of the Finance Act, 1994, the Court decided to condone the delay.Final Decision:The Supreme Court set aside the orders of the High Court, Tribunal, and the Appellate Commissioner. The Court restored the appeal to the file of the Commissioner (Appeals) in Bhopal for consideration on its merits. The Court emphasized expeditious disposal of the appeal and concluded the case accordingly.