TaxTMI 
TaxTMI 
2021 (3) TMI 542
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....t No.1. By the impugned order dated 27.02.2020, the application for condonation of delay in filing the appeal was rejected. Consequently, the related appeal was dismissed as being time barred without entering into the merits. It is this order which is under impugnment in the present proceeding. 2. We have heard Mr. Banhatti, learned counsel for the petitioner and Mr. Mishra, learned counsel for the respondents. 3. Facts lie within a narrow compass in as much as we are not called upon to enter into the merit of the claim of the petitioner. 4. Petitioner is a private limited company engaged in the business of import, manufacturing, assembling and sale of motor vehicles and motor parts. It may be mentioned that petitioner is the successor company formed pursuant to the scheme of amalgamation between Skoda Auto India Private Limited, Volkswagen Group Sales India Private Limited and Volkswagen India Private Limited which was sanctioned by the National Company Law Tribunal, Mumbai Bench. 5. On 08.04.2019, Assistant Commissioner of Goods and Services Tax, Aurangabad Urban Division issued notice to the petitioner to show cause-cum-demand alleging that there was short payment of service....
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.....2019 being the next working day. Petitioner also sent an application dated 05.12.2019 to respondent No.1 requesting the latter to condone the delay in presenting the appeal, if any. 13. By the impugned order dated 27.02.2020, respondent No.1 held that petitioner had received the order-in-original on 30.08.2019. Petitioner had the normal period of limitation for filing the appeal upto 30.10.2019. This period could be extended by another month if delay could be satisfactorily explained. Adding this one month, the limitation period would stand extended to 30.11.2019. However, the present appeal was filed on 04.12.2019 i.e., the date of receipt of the appeal, which was beyond the extended period of limitation. Holding that respondent No.1 had no power to condone the delay beyond the period of one month after the normal period of limitation of two months, the appeal was found to be time-barred. Consequently, the application for condonation of delay was rejected. Resultantly, the appeal was dismissed as time barred without entering into the merit. 14. Aggrieved, present writ petition has been filed seeking the reliefs as indicated above. 15. Mr. Dhanman Meena, Assistant Commissioner ....
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....ay (02.12.2019), with 01.12.2019 being a holiday on account of being a Sunday which would be within the limitation period. Petitioner has asserted that contention of the respondents that 04.12.2019 would be construed to be the date of filing the appeal as on that date the appeal was received would not be a correct interpretation of the factual and legal position. Reference has been made to several judicial pronouncements in support of the contention that the appeal was filed within the extended limitation period. 17. Learned counsel for the petitioner submits that matter relates to levy of service tax dues. Therefore, the appeal filed by the petitioner was governed by the provisions of section 85 of the Finance Act, 1994. Referring to sub-section (3A), he submits that the limitation period for filing such an appeal is two months from the date of receipt of the order of the adjudicating authority. However, as per the proviso to sub-section (3A), the appellate authority if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the period of two months, may allow it to be presented within a further period of one month. Learned counsel f....
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....umar Tiwari, 2015 (37) STR 727, he expands his arguments by submitting that the day when the order was received by the petitioner would have to be excluded. If this is so then the limitation of two months would commence from 31.08.2019 and would continue till 31.10.2019. If the extended period of limitation of one month is added to this, it would mean that the same would expire on 01.12.2019. 01.12.2019 being a Sunday, the next working day i.e., 02.12.2019 would be construed to be the last day of the extended period of limitation. His further contention is that it is not the date of receipt of the appeal but the date of dispatch which should be treated as the date of filing the appeal. In this connection, he has relied upon a decision of the Allahabad High Court in Jhabboo Lal Kesara Rolling Mills Vs. Union of India, 1985 (19) ELT 367. 17.3. Learned counsel for the petitioner has referred to a series of other judgments which have been placed before the Court by way of compilations including a judgment of the Kerala High Court in Bannari Amman Steels (P) Ltd. Vs. Commissioner of Central Excise, 2004 (2) KLT 197 which took the view that where the appeal was dispatched to the appella....
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....y an adjudicating authority subordinate to the Principal Commissioner of Central Excise or Commissioner of Central Excise may appeal to the Commissioner of Central Excise (Appeals). (2) Every appeal shall be in the prescribed form and shall be verified in the prescribed manner. (3) An appeal shall be presented within three months from the date of receipt of the decision or order of such adjudicating authority, relating to service tax, interest or penalty under this Chapter made before the date on which the Finance Bill, 2012 receives the assent of the President: 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....
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....thority is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of two months. 23. Before we analyze the provision relating to filing of appeal in matters of central excise, which at the first blush appears to be pari-materia to section 85(3A), what is noticeable in section 85(3A) is that the word 'presented' is used and not 'filed'. In other words, the appeal is to be presented and not filed. Thus, presentation of appeal has to be within two months from the date of receipt of the order or decision appealed against. Therefore, the date of receipt of the order or decision appealed against becomes very relevant. Limitation period of two months can be extended for a further period of one month if the appellate authority is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the limitation period of two months. 24. Section 35 of the Central Excise Act, 1944 deals with appeals filed in respect of order-in-original passed by the adjudicating authority in matters relating to central excise. Sub-section (1) of section 35 provides for filing of appeal against such ....
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....d by sufficient cause from presenting the appeal within the aforesaid period of two months, he can allow it to be presented within a further period of one month. In other words, the appeal has to be filed within two months but in terms of the proviso further one month time can be granted by the appellate authority to entertain the appeal. The proviso to sub-section (3A) of section 85 makes the position crystal clear that the appellate authority has no power to allow the appeal to be presented beyond the period of one month over and above the normal period of two months. 18.2. In the present case, it is established that the appellant has received the impugned OIO on 30-08-2019. The appellant was required to file the appeal within two months period (normal period for filing appeal) i.e. by 30-10-2019. The period may be extended by another one month if the delay is explained satisfactorily. The appeal could still have been filed within further one month's period from 30-10-2019 i.e. by 30-11-2019 with an application for condonation of delay in filing appeal. I find that the present appeal has been filed on 04-12-2019. Thus Commissioner (Appeals) can condone the delay upto one mo....
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....e 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 therefore justified in holding that there was no power to condone the delay after the expiry of 30 days period.' In such light it is observed that the above case law is in context of Section 35 of the Central Excise Act, 1944. The provision of Section 85 of the Finance Act, 1994 are 'pari materia' with those of Section 35 of the Act of 1944, thus citation would be squarely applicable in all of the instant matters, as the appeals covered under the present case relate to Central Excise matter as well as Service Tax matters. 20. Hence, I find that the appeal bearing No.199/2019-20 is beyond my purview. In view of the above and without going int....
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...., Supreme Court dealt with the provisions of section 16(3) of the Bihar Land Reforms Act, 1961 which provided that benefits under the said act could be availed of if an application is made within three months of the date of registration of the documents of transfer. Posing the question as to what was meant by the word 'month', Supreme Court held that British calendar would mean Gregorian calendar. It was held that when the period prescribed is a calendar month running from any arbitrary date, the period of one month would expire upon the day in the succeeding month corresponding to the date upon which the period starts. 27.3. Supreme Court in State of H. P. Vs. M/s. Himachal Techno Engineers, 2010 AIR SCW 5088 considered the period of limitation prescribed under sub-section (3) of section 34 of the Arbitration and Conciliation Act, 1996. While section 34 relates to application for setting aside arbitral award, sub-section (3) thereof prescribes the period of limitation for filing of such application which is three months. In that context, Supreme Court examined the meaning of the word 'month' and held that a month does not refer to a period of 30 days but refers to the actual peri....
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....t being the position, we hold that there was no infirmity on the part of the petitioner in dispatching the appeal by post; speed post in the present case as the order challenged in the appeal was sent to the petitioner by speed post. 30. Coming back to section 85(3A), we find that while prescribing the period of limitation, Parliament has used the expression ''within two months from the date of receipt of the decision or order'', which is of course extendable by a further period of one month in an appropriate case. We have already discussed above that a month means and has to be reckoned according to the British calendar and not by the number of days comprising a month. In so far the word 'from' appearing in subsection (3A) is concerned, it appears from the language used that the period of limitation is to be counted from the date of receipt of the decision or order. 30.1. In this connection, section 9 of the General Clauses Act is quite instructive and the same is extracted hereunder:- "9. Commencement and termination of time.- (1) In any Central Act or Regulation made after the commencement of this Act, it shall be sufficient, for the purpose of exclud....
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....ion of the appeal i.e., 04.12.2019 and therefore, it was held that the appeal was beyond the period of limitation. 34. In Jhabboo Lal Kesara Rolling Mills (supra), a Division Bench of the Allahabad High Court took the view that if the appeal was sent by registered post to the appellate authority at the correct address within the period of limitation but was received beyond the period of limitation that would not render it barred by limitation. This principle will apply where it is found that the appeal had been dispatched to the appellate authority prior to the expiry of the period of limitation. 35. This position has been reiterated by the High Court of Kerala in Bannari Amman Steels (P) Ltd. (supra) where it has been held that when the appeal was dispatched to the appellate authority prior to the expiry of the period of limitation, it would not be barred by limitation if the same was received after the period of limitation. 36. Thus having a clear picture of the legal position, we may now address the issue at hand. Petitioner received the order-in-original sent by speed post on 30.08.2019. As per section 9 of the General Clauses Act, this date would have to be excluded while c....
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.... the requirement is that there should be a period prescribed and that period should expire on a holiday. Section 10 itself indicates that this provision is for computation of time. Therefore, if the limitation for filing an appeal or the extended period for filing an appeal expires on Sunday but it is filed on Monday, then by operation of section 10 it would be deemed to have been done within time. 38. We find that 01.12.2019 was a Sunday. Therefore, benefit of this public holiday would be available to the petitioner in terms of section 10 of the General Clauses Act. Accordingly, the appeal presented on 02.12.2019 would be construed to be within the extended period of limitation, 01.12.2019 being a public holiday. Whether the benefit of the extended period of limitation of one month is to be granted to the petitioner or not is however within the discretion of respondent No.1. 39. Before parting with the record we may refer to the decision of the Supreme Court in M/s. Glaxo Smith Kline Consumer Health Care Limited (supra) relied upon by learned counsel for the respondents. The issue before the Supreme Court in that case was whether the High Court in exercise of its writ jurisdicti....