2025 (4) TMI 570 - AT - Service Tax

Partnership firm deemed served when order delivered to one partner under section 85(3A)

The CESTAT New Delhi dismissed an appeal challenging the Commissioner (Appeals)'s rejection of a time-barred appeal. The tribunal held that service of an ... Time limitation for filing appeal - appeal filed within the permissible time limit as stipulated under section 85(3A) of the Finance Act, 1994 or not - service of the order upon one partner of a partnership firm constitutes service upon the firm itself - HELD THAT:- There is nothing on the record to show that there was any dispute between the two partners as no documents have been filed except a complaint before the Police which was also not pursued - Service of an order upon a partner shall be deemed to be service upon the appellant. The order shall, therefore, be deemed to have been served upon the appellant on 07.04.2017 and it is this date which has to be considered for the purposes of calculating limitation under section 85(3A) of the Finance Act. On a plain reading of the aforesaid provisions of section 85(3A) of the Finance Act, it is clear that any person aggrieved by any decision or order passed by the adjudicating authority may appeal to the Commissioner (Appeals) within two months from the date of receipt of the decision or order. The proviso, however, stipulates that the Commissioner (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. It is, therefore, clear that an appeal can be filed within two months from the date of communication of the order, but if the appeal is filed after two months but within one month after the expiry of two months, the Commissioner (Appeals) may condone the delay in filing the appeal if he is satisfied that the appellant was prevented by sufficient cause from preferring the appeal within two months. This issue was considered by the Supreme Court in Singh Enterprises vs. Commissioner of Central Excise, Jamshedpur [2007 (12) TMI 11 - SUPREME COURT]. The Supreme Court examined the provisions of section 35 of the Central Excise Act, 1944, which are para materia the provisions of section 85 of the Finance Act, and observed that delay can be condoned in accordance with the language of the Statute which confers power on the Appellate Authority to entertain the appeal by condoning the delay only up to 30 days after expiry of 60 days which is the normal period for preferring the appeal. It is for this reason that the Supreme Court observed that the Commissioner and High Court were justified in holding that there was no power to condone the delay after expiry of 30 days period. A Division Bench of the Tribunal in Diamond Construction [2019 (2) TMI 1822 - CESTAT NEW DELHI], in which the provisions of section 85 (3A) of the Finance Act 1994 relating to appeals to the Commissioner of Central Excise (Appeals) came up for consideration, after placing reliance upon the decision of the Supreme Court in Singh Enterprises observed that the discretion of the Commissioner to condone the delay is circumscribed by the conditions set out in the proviso and any delay beyond that period cannot be condoned. Conclusion - As the appeal is preferred by the appellant before the Commissioner (Appeals) even beyond the extended period of one month after the expiry of the statutory period of two months, it is liable to be dismissed and is rightly dismissed by the Commissioner (Appeals). There is, therefore, no infirmity in the order passed by the Commissioner (Appeals). The appeal is, accordingly, dismissed. ISSUES PRESENTED and CONSIDEREDThe primary issue considered in this judgment was whether the appeal filed by the appellant, M/s. M N Singh, before the Commissioner (Appeals) was within the permissible time limit as stipulated under section 85(3A) of the Finance Act, 1994. The specific questions were:(i) Whether the service of the order upon one partner of a partnership firm constitutes service upon the firm itself.(ii) Whether the Commissioner (Appeals) had the authority to condone the delay in filing the appeal beyond the statutory period of two months and the additional condonable period of one month.(iii) Whether the appeal period should be calculated from the date the other partner received the duplicate copy of the order.ISSUE-WISE DETAILED ANALYSISService of Order on a Partner- Relevant Legal Framework and Precedents: The legal principle that service of an order upon one partner is deemed service upon the partnership firm was central to this issue. This principle is grounded in the general legal understanding of partnerships where partners act as agents for the firm.- Court's Interpretation and Reasoning: The Tribunal held that the service of the order dated 28.02.2017 on Aniruddha Pratap Singh, a partner of the appellant firm, constituted service on the firm itself. This was evidenced by the acknowledgment receipt signed by Aniruddha Pratap Singh.- Application of Law to Facts: The acknowledgment of receipt by Aniruddha Pratap Singh on 07.04.2017 was considered the date of service for the purpose of calculating the limitation period under section 85(3A) of the Finance Act.Condonation of Delay Beyond Statutory Period- Relevant Legal Framework and Precedents: Section 85(3A) of the Finance Act allows an appeal to be filed within two months from the date of receipt of the order, with a possible extension of one month if the appellant shows sufficient cause for the delay. The Supreme Court's decision in Singh Enterprises was cited, which clarified that the appellate authority has no power to condone delays beyond this period.- Court's Interpretation and Reasoning: The Tribunal emphasized that the statutory framework strictly limits the period within which an appeal can be filed. The Commissioner (Appeals) is only empowered to condone a delay of up to one month beyond the initial two-month period.- Key Evidence and Findings: The appeal was filed on 18.10.2017, well beyond the permissible period, even considering the extended one-month period. No sufficient cause was demonstrated to justify the delay beyond this period.- Application of Law to Facts: The Tribunal applied the legal provisions and precedents to conclude that the Commissioner (Appeals) rightly dismissed the appeal for being time-barred.Calculation of Limitation Period- Relevant Legal Framework and Precedents: The calculation of the limitation period was based on the date of receipt of the order by the firm, not by individual partners.- Court's Interpretation and Reasoning: The Tribunal rejected the argument that the limitation period should commence from the date the other partner, Sangram Singh, received a duplicate copy of the order. The Tribunal noted that the service on Aniruddha Pratap Singh was valid for the firm.- Competing Arguments: The appellant argued for the limitation period to start from the date Sangram Singh received the duplicate order, citing a dispute between the partners. However, the Tribunal found no evidence of such a dispute affecting the service of the order or the filing of the appeal.SIGNIFICANT HOLDINGS- The Tribunal held that service of an order on one partner constitutes service on the partnership firm, and the limitation period for filing an appeal begins from that date of service.- The Tribunal affirmed that the statutory provisions under section 85(3A) of the Finance Act do not allow for condonation of delay beyond one month after the initial two-month period, aligning with the Supreme Court's decision in Singh Enterprises.- The Tribunal concluded that the appeal was rightly dismissed by the Commissioner (Appeals) as it was filed beyond the permissible period, and no sufficient cause was shown to justify the delay.- The Tribunal dismissed the appeal, upholding the order of the Commissioner (Appeals) as there was no infirmity in the decision to dismiss the appeal for being time-barred.