TaxTMI 
TaxTMI 
2022 (4) TMI 1210
X X X X Extracts X X X X
X X X X Extracts X X X X
....94 (for brevity hereinafter referred to as "the Act") read with Sections 91 and 95 of the Finance (No.2) Act, 2004 and Sections 136 and 140 of the Finance Act, 2007 along with interest under Section 75 of the Act, the petitioner has knocked the doors of this Court invoking provisions of Article 226 of the Constitution of India. 3. The petitioner, M/s. Kirit Kumar K Thaker, a service provider, whose business activity alleged to have fallen within the ambit of "CARGO HANDLING SERVICE" under Section 65(23) read with Section 65(105(zr) of the Act, is said not to have discharged service tax liability for the Financial Years 2011-12, 2012-13, 2013-14 and 2014-15, which fact could be unearthed by conducting inspection at the premises of the petitioner-noticee by the officials of the Central Preventive Unit of Central Excise, Customs & Service Tax, Bhubaneswar-I Commissionerate, Bhubaneswar. Perusal of the Order-in-Original reveals that with effect from 01.07.2012 the service provided by the petitioner has been brought under negative list as defined under section 65B. It is further revealed that in respect of financial year 2011-12, the Assessing Authority has treated the figures of "ve....
X X X X Extracts X X X X
X X X X Extracts X X X X
....shyam Chimanka, Senior Standing Counsel supported the reasons ascribed by the Appellate Authority in rejecting the appeal and submitted that plea of hardship would not be relevant factor for waiving the conditions for entertainment of appeal. This apart, inordinate delay without sufficient cause as envisaged under Section 85 of the Act being shown by the appellant-assessee, there is little scope for this Court to intervene in the matter in exercise of extraordinary jurisdiction under Article 226 of the Constitution of India, more so when statute interdicts the discretionary power of the Appellate Authority. 7. This Court proposes to examine both the angles emanating from the rival contentions and submissions. 8. As regards the first issue, the exposition of law with regard to applicable statutory provision on the date of entertainment of appeal has been propounded by this Court in the case of Indian Oil Corporation Vrs. Odisha Sales Tax Tribunal, Cuttack, 2009 (Supp.1) OLR 928 = 109 (2010) CLT 355. This Court succinctly laid down as follows: "22. In view of the above, law can be summarised that if a condition of pre­deposit is imposed, a party while filing the ap....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ied.- Where in any appeal under this Chapter, the decision or order appealed against relates to any duty demanded in respect of goods which are not under the control of Central Excise authorities or any penalty levied under this Act, the person desirous of appealing against such decision or order shall, pending the appeal, deposit with adjudicating authority the duty demanded or the penalty levied: Provided that where in any particular case, the Commissioner (Appeals) or the Appellate Tribunal is of opinion that the deposit of duty demanded or penalty levied would cause undue hardship to such person, the Commissioner (Appeals) or, as the case may be, the Appellate Tribunal, may dispense with such deposit subject to such conditions as he or it may deem fit to impose so as to safeguard the interests of revenue: Provided further that where an application is filed before the Commissioner (Appeals) for dispensing with the deposit of duty demanded or penalty levied under the first proviso, the Commissioner (Appeals) shall, where it is possible to do so, decides such application within thirty days from the date of its filing. Explanation:- For the purposes of th....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 8.5. Intention of amendment can be culled out from bare reading of the provisions as they stood prior to amendment and post-amendment in juxtaposition. Under the provisions prior to amendment an appellant was required to deposit the duty/tax demanded or the penalty levied with the Appellate Authority or the Tribunal; and the application for waiving the deposit also could be preferred. Weighing balance, considering the undue hardship on the part of the assessee- appellant on the one hand and safeguard of the interests of the revenue on the other, the amount of deposit could be waived by the Tribunal or the Appellate Authority by exercising judicial discretion. However such discretion has been curtailed after amendment of Section 35F with effect from 06.08.2014. Substituted Section 35F of the Central Excise Act, 1944 as a matter of rule provided that, 7.5% or 10%, as the case may be, of the tax/duty demanded or penalty levied shall have to be deposited pending the appeal subject to deposit of maximum amount of Rs. 10,00,00,000/-. Thus, by virtue of the substituted Section 35F of the Act, 1944, invariably 92.5% or 90% of tax demanded or duty levied is waived during the pendency of ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 1988 SC 2010, the Hon'ble Apex Court held as under: "Right of appeal is neither an absolute right nor an ingredient of natural justice, the principles of which must be followed in all judicial and quasi judicial adjudications. The right to appeal is a statutory right and it can be circumscribed by the conditions in the grant... If the statute gives a right to appeal upon certain conditions, it is upon fulfilment of these conditions that the right becomes vested and exercisable to the appellant... The purpose of the section is to act in terrorem to make the people comply with the provisions of law." 8. Similar view has been reiterated by the Hon'ble Apex Court in Anant Mills Co. Ltd. Vrs. State of Gujarat, AIR 1975 SC 1234; and Shyam Kishore & Ors. Vrs. Municipal Corportation of Delhi & Anr., AIR 1992 SC 2279; Gujarat Agro Industries Co. Ltd. Vrs. Municipal Corporation of the City of Ahmedabad & Ors., AIR 1999 SC 1818. In Shyam Kishore (supra) the Hon'ble Supreme Court placed reliance upon its earlier Judgment in Nandlal Vrs. State of Haryana, AIR 1980 SC 2097, wherein it has been held that "right of appeal is a creature of statute and there is no reason why the L....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... or hearing of the appeal, the Courts are supposed to give strict adherence to the statutory provisions. The purpose of imposing the pre­deposit condition is that right of appeal may not be abused by any recalcitrant party and there may not be any difficulty in enforcing the order appealed against if ultimately it is dismissed. There must be speedy recovery of the amount of tax due to the authority." 8.8. Reference also may be had to recent Judgment being ECGC Limited Vrs. Mukul Shriram EPC JV, 2022 SCC OnLine SC 184 wherein the following observation has been made: "32. The Division Bench of the Madras High Court in Dream Castle v. Union of India, W.P. No. 13431 of 2015 etc. decided on 18.04.2016 dealing with amended Section 35 of the Central Excise Act by Finance Act No. 2 of 2014 held that when the unamended condition gave only a chance or hope for an assessee to get a total waiver at the discretion of the Appellate Authority, the same cannot be equated to a vested right or stated to be retrospective, unless it is definitely shown that the amended condition is more onerous than the unamended condition. It was held as under: "54. Therefore, it is well sett....
X X X X Extracts X X X X
X X X X Extracts X X X X
....the Legislature can put conditions for maintaining the same. 26. For the reasons stated above, the decisions relied upon by the petitioner are of no help to the petitioner as those decisions are rendered in respect of particular facts of that case. 27. In view of the above, we are of the considered view that the provisions of Section 77(4) of the OVAT Act requiring deposit of 20% of the tax or interest or both in dispute as a precondition for entertaining an appeal against the order enumerated under Section 77(1) of the OVAT Act does not make the right of appeal illusory and such a condition is within the legislative power of the State Legislature and cannot be held to be unreasonable and violative of Article 14 of the Constitution." 8.10. The Hon'ble Jharkhand High Court at Ranchi has analysed the position in Satya Nand Jha Vrs. Union of India, 2016 SCC OnLine Jhar 2323 = (2017) 2 AIR Jhar R 619 = (2016) 4 JBCJ 392 (HC) in the following lines: "17. By virtue of substituted Section 35F of the Central Excise Act, 1944 the following objects are going to be achieved:- (a) There shall be safeguard of the revenue; (b) Multifariousness of p....
X X X X Extracts X X X X
X X X X Extracts X X X X
....f pre-deposit required to be made by the appellant after taking into consideration the merits of the case and/or considering financial hardship caused to the assessee. This apart, safeguard the interest of revenue was also one of factors. The Appellate Authority was even competent to order for partial pre-deposit or to waive the pre-deposit altogether. However, with effect from 06.08.2014, such discretion of the Commissioner (Appeals) and/or CESTAT has been dispensed with. If the prescribed pre-deposit is not made by the time of entertainment of the appeal, the appeal is liable for rejection. 8.12. This Court has considered the rival submissions and examined the statutory provisions. It is an undisputed position that a right to file an appeal is not an absolute right but a right bestowed by the statute. Thus, such a statutory right of appeal can be made subject to conditions. However, though the right of appeal has been made conditional by Section 35F of the Central Excise Act, 1944, as applicable to Finance Act, 1994, by virtue of Section 85 of Chapter-V of the Finance Act, 1994, it is unambiguously suggested that a party who desires to challenge the Order-in-Original in appeal....
X X X X Extracts X X X X
X X X X Extracts X X X X
....petitioner by way of writ petition, it is only to be said that the argument is untenable in the eye of law on the touchstone of the interpretation of law by the Hon'ble Supreme Court. 9.1. It is forthcoming from the Order-in-Appeal dated 27.01.2022 that the Order-in-Original dated 25.01.2018 passed under Section 73 of the Act was served on the petitioner-assessee on 09.02.2018 and appeal being filed on 10.01.2022, there was a delay of 1430 days in presenting the appeal. 9.2. The Appellate Authority has assigned reasons to justify that he ceases to have jurisdiction to condone the delay beyond the period specified under Section 85 of the Act. The Appellate Authority has discarded the following reason assigned by the petitioner eliciting the nature of delay in presenting the appeal: "In the instant case, the explanation offered for the abnormal delay of nearly 47 months is that the Service Tax has been paid and the case is made complicated by the Departmental Officers so that the appellant could not understand how to defend the case. From the application for condonation of delay, it appears that the appellant has categorically accepted the receipt of the order. During ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e against such enhancement. (5) Subject to the provisions of this Chapter, in hearing the appeals and making order under this section, the Commissioner of Central Excise (Appeals) shall exercise the same powers and follow the same procedure as he exercises and follows in hearing the appeals and making orders under the Central Excise Act, 1944 (1 of 1944)." 9.4. From the narration of facts, the instant case falls within the ambit of sub-section (3A) of Section 85 of the Act which without admitting any ambiguity hints at that an appeal can be presented within two months from the date of receipt of the Order-in-Original passed by the adjudicating authority under Section 73 relating to service tax, interest or penalty under Chapter-V of the Finance Act, 1994. Proviso thereto unequivocally lays down that in case of delay in presentation of appeal, the discretion of the Commissioner of Central Excise (Appeals) in considering application for condonation of delay is restricted. If the Commissioner (Appeals) is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of two months, he has the jurisdiction to allow it t....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... by showing sufficient cause after the prescribed period, there is complete exclusion of Section 5 of the Limitation Act. The High Court was, therefore, justified in holding that there was no power to condone the delay after expiry of the prescribed period of 180 days. 35. It was contended before us that the words "expressly excluded" would mean that there must be an express reference made in the special or local law to the specific provisions of the Limitation Act of which the operation is to be excluded. In this regard, we have to see the scheme of the special law which here in this case is the Central Excise Act. The nature of the remedy provided therein is such that the legislature intended it to be a complete code by itself which alone should govern the several matters provided by it. If, on an examination of the relevant provisions, it is clear that the provisions of the Limitation Act are necessarily excluded, then the benefits conferred therein cannot be called in aid to supplement the provisions of the Act. In our considered view, that even in a case where the special law does not exclude the provisions of Sections 4 to 24 of the Limitation Act by an express refer....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Pati, W.P.(C) No. 37571 of 2020, held as follows: "11. In the present case, admittedly the last date for filing of the petitions under Section 34 of the A&C Act by the NHAI to challenge the awards in question was 29th April, 2019. In terms of Section 34(3) of the A&C Act it was not possible for any challenge to be entertained beyond the outer limit of 120 days. This position has been made explicit in a series of decisions of the Supreme Court of India including Popular Construction Company, (2001) Suppl. 3 SCR 619 and Simplex Infrastructure Ltd., (2019) 2 SCC 455. In the last mentioned decision after discussing extensively the earlier case law, the Supreme Court explained in para 18 as under: "18 A plain reading of sub­section (3) along with the proviso to Section 34 of the 1996 Act, shows that the application for setting aside the award on the grounds mentioned in sub­section (2) of Section 34 could be made within three months and the period can only be extended for a further period of thirty days on showing sufficient cause and not thereafter. The use of the words "but not thereafter" in the proviso makes it clear that the extension cannot be beyond thi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ppellants satisfied the Commissioner or the High Court that a question of law arose out of the order. But the procedure provided by the Act to invoke the jurisdiction of the High Court was bypassed, the appellants moved the High Court challenging the competence of the Provincial Legislature to extend the concept of sale, and invoked the extraordinary jurisdiction of the High Court under Article 226 and sought to reopen the decision of the Taxing Authorities on question of fact. The jurisdiction of the High Court under Article 226 of the Constitution is couched in wide terms and the exercise thereof is not subject to any restrictions except the territorial restrictions which are expressly provided in the Articles. But the exercise of the jurisdiction is discretionary: it is not exercised merely because it is lawful to do so. The very amplitude of the jurisdiction demands that it will ordinarily be exercised subject to certain self­ imposed limitations. Resort that jurisdiction is not intended as an alternative remedy for relief which may be obtained in a suit or other mode prescribed by statute. Ordinarily the Court will not entertain a petition for a writ under Article 226, whe....
X X X X Extracts X X X X
X X X X Extracts X X X X
....This rule was stated with great clarity by Willes, J. in Wolverhampton New Waterworks Co. v. Hawkesford [(1859) 6 CBNS 336, 356] in the following passage: There are three classes of cases in which a liability may be established founded upon statute. ... But there is a third class, viz. where a liability not existing at common law is created by a statute which at the same time gives a special and particular remedy for enforcing it... The remedy provided by the statute must be followed, and it is not competent to the party to pursue the course applicable to cases of the second class. The form given by the statute must be adopted and adhered to. The rule laid down in this passage was approved by the House of Lords in Neville v. London Express Newspapers Ltd. (1919 AC 368) and has been reaffirmed by the Privy Council in Attorney­General of Trinidad and Tobago v. Gordon Grant & Co. Ltd. (1935 AC 532) and Secretary of State v. Mask & Co. (AIR 1940 PC 105). It has also been held to be equally applicable to enforcement of rights, and has been followed by this Court throughout. The High Court was therefore justified in dismissing the writ petitions in limine.'....
X X X X Extracts X X X X
X X X X Extracts X X X X
....2010) 5 SCC 23; and Suryachakra Power Corporation Limited vs. Electricity Department represented by its Superintending Engineer, Port Blair & Ors. (2016) 16 SCC 152 and concluded that Section 5 of the Limitation Act, 1963 cannot be invoked by the Court for maintaining an appeal beyond maximum prescribed period in Section 125 of the Electricity Act. 20. The principle underlying the dictum in this decision would apply proprio vigore to Section 31 of the 2005 Act including to the powers of the High Court under Article 226 of the Constitution. *** 21. A priori, we have no hesitation in taking the view that what this Court cannot do in exercise of its plenary powers under Article 142 of the Constitution, it is unfathomable as to how the High Court can take a different approach in the matter in reference to Article 226 of the Constitution. The principle underlying the rejection of such argument by this Court would apply on all fours to the exercise of power by the High Court under Article 226 of the Constitution." 9.9. Regard being had to the position of law, on the material available on record that the petitioner having received the Order-in-Original passed under Se....