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TaxTMI 
TaxTMI 
TaxTMI 
2017 (6) TMI 721
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....one any delay further than what he has been permitted to condone as per the law, assessee has preferred the present Tax Appeal with the following proposed questions of law; (A) Whether, in the facts and circumstances of the case, the Customs, Excise and Service Tax Appellate Tribunal was right in law in rejecting the Appeal stating that there is no infirmity in the order of the Commissioner (Appeals) despite the fact that the appellant had filed Appeal before the Commissioner (Appeals) on the 90th day i.e. within the prescribed time limit? (B) Whether, in the facts and circumstances of the case, the Customs, Excise and Service Tax Appellate Tribunal was right in law in interpreting the term "month" as "British calender month" in absence of any specific definition instead of interpreting the term "month" as "period of 30 days"? (C) Whether in the facts and circumstances of the case, the order passed by the Customs, Excise and Service Tax Appellate Tribunal is perverse inasmuch the Appeal has been dismissed merely on the technical count being delay in filing Appeal against the Order-in-Original rather than the issue being decided on merits? [3.0] The facts leading the present ....
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....f the Finance Act, 1994, which means "period of 30 days". It is submitted that the total period of "three months" i.e. (two months + one month) means "period of 90 days". It is submitted that if the learned tribunal would have considered and /or interpreted Clause 85 (3A) of the Finance Act, 1994, in that case, it can be said that the Appeal was preferred within the condonable period of one additional month after the allowed two months for filing the Appeal. It is vehemently submitted by Shri Tushar Hemani, learned advocate appearing on behalf of the appellant that as per the law, learned Commissioner (Appeals) has powers to condone the delay of "one month" in filing the Appeal beyond the prescribed time limit i.e. "two months", which implies that if the Appeal has been filed within "three months" i.e. within the period of 90 days, learned Commissioner (Appeals) is empowered to condone the delay in filing the Appeal and decide the issue on merits. It is submitted that in the present case the appellant preferred Appeal before the learned Commissioner (Appeals) on the 90th day, and therefore, if the term "three months" is considered as "90 days", the learned Commissioner (Appeals) wa....
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....tions with respect to the term "month" are possible, interpretation, which is in favour of the assessee must be adopted. In support of his above submissions, he has heavily relied upon the decision of the Hon'ble Supreme Court in the case of Pratap Singh Vs. State of Jharkhand and Another reported in (2005) 3 SCC 551. [5.5] Shri Tushar Hemani, learned advocate appearing on behalf of the appellant has also heavily relied upon the decision of the Calcutta High Court in the case of Ashoke Dasgupta Vs. United Bank of India and Ors reported in (2000) IIILLJ 1489 Cal as well as the decision of the Bombay High Court in the case of Bombay Gas Public Ltd. Vs. Laxman Dhaku and Others reported in 1997 (1) LLN 193. in support of his above submissions that the word "three months" mentioned in Clause 85 of the General Clauses Act, 1897 of the Finance Act be read as "ninety days". Making the above submissions and relying upon the above decisions, it is requested to admit /allow the present Tax Appeal. [6.0] The present Tax Appeal is vehemently opposed by Shri Dhaval Vyas, learned advocate appearing on behalf of the respondents. It is vehemently submitted by Shri Dhaval Vyas, learned advocate a....
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....ss the present Tax Appeal and answer the question in favour of the revenue and against the assessee. [7.0] Heard the learned advocates appearing on behalf of the respective parties at length. At the outset, it is required to be noted that the learned Commissioner (Appeals) rejected the Appeal preferred by the appellant, which was preferred against the Order-in-Original, on the ground that the Appeal preferred was time barred and beyond the condonable period of one additional month after the period of filing the Appeal as per Clause 85(3A) of the Finance Act, 1994. Clause 85(3A) of the Finance Act, 1994 reads as under; "3(A) 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." [7.1] It is an adm....
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....ninety days", Hon'ble Supreme Court while answering the aforesaid question has observed in paragraph 9 to 11 as under; "9. The High Court has held that "three months" mentioned in Section 34(3) of the Act refers to a period of 90 days. This is erroneous. A "month" does not refer to a period of thirty days, but refers to the actual period of a calendar month. If the month is April, June, September or November, the period of the month will be thirty days. If the month is January, March, May, July, August, October or December, the period of the month will be thirty one days. If the month is February, the period will be twenty nine days or twenty eight days depending upon whether it is a leap year or not. 10. Sub-Section (3) of Section 34 of the Act and the proviso thereto significantly, do not express the periods of time mentioned therein in the same units. Sub-Section (3) uses the words "three months" while prescribing the period of limitation and the proviso uses the words "thirty days" while referring to the outside limit of condonable delay. The legislature had the choice of describing the periods of time in the same units, that is to describe the periods as "three months" and ....
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.... 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 this Chapter, pass such orders as he thinks fit and such orders may include an order enhancing the Service Tax, interest or penalty: Provided that an order enhancing the Service Tax, interest or penalty shall not be made unless the person affected ....
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....r three calendar months. 6. In our view, the question does not suffer from any ambiguity. In construing fiscal legislation, the duty of the Court is to interpret the statute and the language used by the legislature by giving to it a plain and natural meaning. Significantly, where the legislature intends to define the period of limitation with regard to the number of days, it does so specifically. In the case of the Act of 1994, Section 85 has defined the period of limitation as well as the power to condone the delay with regard to a stipulation in terms of months and such a stipulation can only mean a calendar month. Once the legislature has used the expression "three months" both in the substantive part of sub-section (3) of Section 85 as well as in its proviso, it would not be open for the Court to substitute the words "three months" by the words "ninety days". To do so, would amount to rewriting the legislative provision, which is impermissible. 7. The expression "month" is also defined in Section 3(35) of the General Clauses Act, 1897 (the Act of 1897) to mean a month reckoned according to the British calendar. The issue before the Court is not res integra. A similar provis....
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.... decision shall not be of any assistance to the appellant. Even otherwise, on facts also, the said decision shall not be applicable to the facts of the case on hand. In the case before the Division Bench, the question was whether the learned Appellate tribunal was right in law in reversing the orders passed by the CIT(Appeals) and thereby holding that the assessee was entitled to interest under Section 244A of the Income Tax Act for both the months when the tax was paid and when the tax refundable was adjusted irrespective of the period between such events? While answering the aforesaid question, vis-a-vis Section 244A of the Income Tax Act the Division Bench held that the definition contained in Section 3(35) of the General Clauses Act of the word "month" cannot be adopted in Section 244A of the Income Tax Act, and therefore, the said decision shall not be of any assistance to the appellant to the facts of the case on hand. [7.6] Similarly decision of the Bombay High Court in the case of Bombay Gas Public Ltd. Vs. Laxman Dhaku and Others reported in 1997 (1) LLN 193 and the decision of the Calcutta High Court in the case of Ashoke Dasgupa (Supra) shall not be applicable and /or ....