TaxTMI 
TaxTMI 
2024 (1) TMI 39
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....1994. He also submits that the reason adopted by the Commissioner (Appeals) was affirmed and approved by the Hon'ble Supreme Court in the case of Singh Enterprises Vs CCE Jamshedpur - 2008 (221) ELT 163 (SC). This judgement was again followed by the Hon'ble Apex Court on several occasions and is being followed by various High Courts and Tribunals consistently till date. He further submits that as on date the Supreme Court's judgement is in force and is binding on all the other authorities and Courts under its jurisdiction. Hence, he prays that the Appeals should be dismissed. 3. The Learned Authorized representative of the Appellant, Sri Rip Das, Chartered Accountant, relies on the observations and directions of the Hon'ble Calcutta High Court vide their Order dated 01.12.2022 and submits that this was not followed by this Tribunal while passing the Final Order Nos.75144-75146/2023 dated 22.03.2023. Subsequently considering their fresh WPs, the Hon'ble High Court vide their and Order dated 19.06.2023, took note that the directions / observations of the High Court were not considered and the High Court directed the same should be followed. He submits, that in an....
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....s) as is canvassed by the Authorized Representative of the Revenue and the merits of the case as is being canvassed by the Appellant citing the observations / directions of the High Court as per their Order dated 1.12.2022. 7. Since the details of filing of the Appeals before the Commissioner (Appeals), it is important to consider the same along with the statutory provisions towards time limit set for filing the Appeals. We have to go through the chronological events in the present Appeals. The following Table shows the details of the Orders passed along with the delay in filing the Appeals by the appellant at various stages: SI No. Order-in- Original & Date Date of receipt by the appellant Date of receipt of Appeal petition in the office of the Commissioner (Appeals) No. of Months Delay Date of Receipt of OIA Date of filing Appeal before Tribunal No. of days delay in filing Appeal before Trib....
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.....10.2018, with a delay of over 1900 days. 8) The Tribunal vide Final Order Nos.75003-75005/2021 dated 4.2.2021, has held no cogent reason has been adduced by the appellant towards the enormous delay and hence did not find any reason to condone the delay of over 1900 days and dismissed the Appeal on this ground itself. 9) Being aggrieved by the Final Orders, the Appellant filed Writ Petitions (WPs) before the Single Member of the Hon'ble Calcutta High Court. He did not see any error on the part of the Tribunal in not condoning the delay and dismissed the WPs filed by the appellant. 10) Being aggrieved, the appellant filed WPs before the Divisional Bench of the Hon'ble High Court. 11) The Hon'ble Calcutta High Court vide its Order dated 1.12.2022, noting the pleading of the appellant that on similar issue of refund, after rejection of the same at lower levels, the Tribunal has passed a favourable order and consequently they were granted refund, held that condonation is to be considered in the light of these facts and directed the Tribunal to hear the Appeals afresh. 12) Consequent to the Hon'ble Calcutta High ....
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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 SECTION 86. Appeals to Appellate Tribunal. - (1) Save as otherwise provided herein an assessee aggrieved by an order passed by a Principal Commissioner of Central Excise or Commissioner of Central Excise under section 73 or section 83A by a Commissioner of Central Excise (Appeals) under section 85, may appeal ....
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.... in the office of the Commissioner (Appeals-I) 1. 31/Refund/ST/D-II/Kol/08 dated 13.01.2009 24.01.2009 24.08.2012 2. 07/Refund/ST/D-II/Kol/09 dated 24.03.2009 12.04.2009 24.08.2012 3. 26/Refund/ST/D-II/Kol/09 dated 30.06.2009 11.07.2009 24.08.2012 3. As per the provisions of section 85(3) of Finance Act, 1994, during the relevant period, the appeal should be filed within 3(three) months from the communication of the order or decision against which the appellant prefers to file an appeal. Further, the proviso to section 85(5), ibid empowers the Commissioner (Appeals) to allow the filing of the appeal within a further period of 3(three) months, if the appellant shows sufficient cause, which prevented him to file the appeal within the statutory period of 3 (three) months from the date of receipt of the decision or order of such adjudicating authority. 4. I find that the subject 3(Three) appeals were received in this office after the period of 3 years 7 months and 1 day (three years seven months and one day), 3 years 4 months and 1 day (three years seven months and one day), 3 years 4 months and 13 days (three years four....
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....ecessity to go to the explanation given by the appellant towards the delay. 17. Therefore, when this condition of filing the Appeal within the condonable period of 3 months has not been fulfilled, there is no other statutory provision, requiring him to either go into the explanation towards delay nor hear the case on merits and pass the order to this effect. 18. In this case, being aggrieved by the OIAs passed by the Commissioner (Appeals) dismissing the appeals on the ground of time bar, the appellant has preferred the present three Appeals before the Tribunal again with a delay of 1900 + days. Admittedly, in terms of Section 86, the Tribunal has unrestricted power to condone the delay. Though there are no specifics as to how the COD is to be considered, the condonation is granted subject to the appellant providing proper reason / explanation for filing the appeal in a delayed manner. The condonation is not a matter of right but is subject to the appellant bringing in proper justification towards the delayed filing. 19. In the present case, the Appellant had filed Miscellaneous Application for Condonation of Delay, stating reasons....
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.... such a huge delay. 22. Even the Hon'ble High Court in its Order dated 01.12.2022 has observed as under : 11. It is not clear as to whether the appellant had placed the order passed by the Assistant Commissioner, Bidhannagar CGST & Division dated 10th April, 2019 accepting the classification adopted by the appellant in respect of the specified services. In the order passed by the learned Tribunal dated 4th February, 2021, there is no indication as regard the submission, which were made by the appellant. 23. It speaks of the great legal acumen of the appellant in approaching the Hon'ble High Court by disclosing only the part history of the case, effectively concealing the reason for which the Commissioner (Appeals) had dismissed the Appeals, necessitating them to file their Appeals before the Tribunal. This is being discussed in the subsequent paragraphs 24. The Hon'ble Calcutta High Court vide their Order dated 9.11.2022, has held as under [Relevant extracts] : 9. The learned Tribunal was of the opinion that there is inordinate delay and no reasonable explanation had been done. The settled legal position is that n....
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....ursuing the matter in a time bound manner, considering the fact that the present claim for refund is for the subsequent period, i.e., from October, 2008 to December, 2008, we are of the view that this aspect of the matter can be taken note of by the learned Tribunal while considering the application for condonation of delay. 13. Thus, taking note of the peculiar facts and circumstances, we are inclined to interfere with the order passed by the Learned Tribunal. For the above reasons, the appeal is allowed. The order passed in the writ petition is set aside. Consequently, the writ petition is allowed and the order passed by the learned Tribunal dated 4th February, 2021 is set aside and the Miscellaneous application Nos. 77827 of 2019 (COD), 77828 of 2019 (COD) and 77829 of 2019 (COD) are restored to the file of the learned Tribunal to be considered afresh. The learned Tribunal is requested to take note of the observations made by us, more particularly the fact that the department for the earlier period, i.e. from April, 2008 to September, 2008 has accepted the classification adopted by the appellant on the specified services. 25. This High Court Order, ....
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.... 4. I find that the subject 3(Three) appeals were received in this office after the period of 3 years 7 months and 1 day (three years seven months and one day), 3 years 4 months and 1 day (three years seven months and one day), 3 years 4 months and 13 days (three years four months and thirteen days) and 3 years 1 month and 14 days (three years one month and fourteen days) respectively, along with an application for condonation of delay for late filing of the appeal in respect of all the 3 (three) appeals. The cause of delay mentioned by the appellant in all the three applications for condonation of delay are that; their office was under repair and in the process and due to inadvertence the relevant documents including the Orders-in-Original got misplaced in their office; the dealing executive of the Service Tax matters resigned from the service of the Company and left without handing over of charge and due to his absence, the Company was handicapped and could not pursue the matter. However, I find that as per proviso to Section 85(3) of Finance Act, 1994, Commissioner (Appeals) is empowered to condone only a delay of (3) three months, provided the appellant shows sufficient cause,....
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....p; 2. Against the said order, the appellants are before me. 3. It is undisputed by the appellants that they have filed the appeals before the Ld. Commissioner (Appeals) against the Orderin-Original beyond six months time limit prescribed under Section 85 (3) of Finance Act, 1994 as observed by the Ld.Commissioner (Appeals) herein above. 4. In that circumstances, I hold that the appellant has filed the appeals beyond the time limit prescribed under Section 85 (3) of Finance Act, 1994. Accordingly, I do not find any infirmity with the impugned order and the same is upheld. 5. The appeals filed by the appellants are dismissed as time barred. 31. It is noted from the records that on the date of Final Hearing on 22.3.2023, the Authorized Representative (AR-Appellant) of the appellant, Chartered Accountant Sri Rip Das has appeared argued the case. There is nothing on record to state that he had opposed the view taken by the Bench to dismiss the Appeal on the ground that the Appeals were filed way beyond the condonable period before the Commissioner (Appeals). They have not disputed that the Appeals were file....
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....at the department for the earlier period i.e. from April, 2008 to September, 2008 has accepted the classification adopted by the petitioner on the specified services, while considering for condonation of delay in filing the appeal in question. I have perused the aforesaid impugned order of the Tribunal dated 22nd March, 2023 and on perusal of the same, I do not find a single word in the aforesaid impugned order with regard to specific direction of the Hon'ble Division Bench of this Court dated 1st December, 2022 where the tribunal was specifically asked to take the aforesaid observation which was made by the Hon'ble Division Bench of this Court in paragraph 13 of the said order to consider the earlier period in question relating to which the department has accepted the classification adopted by the petitioner in his specified services. Considering the facts and circumstances of the case as appears from record and submission of the parties, I am of the view that the aforesaid impugned order is total non-application of mind and is non-speaking order and I am also of the view that no useful purpose will be served in keeping the writ petition pending and the matter should be r....
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....resaid period of three months, allow it to be presented within a further period of three months. [Emphasis supplied] 38. A careful reading of the above statutory provisions would clarify that in respect of Appeals before Commissioner (Appeals) to be filed under Section 85 (3), both the time limit for filing the Appeal as well as the condonable period by him are prescribed. The Commissioner (Appeals) can condone the delay of a maximum of 3 months. Thus, as a thumb-rule, it is taken that the appellant has a maximum period of 6 months to complete this Appeal filing. 39. The Section 85 (3) and Section 86 clearly bring out the Legislative intent of allowing restricted power to the Commissioner (Appeals) and unrestricted power to the Tribunal. Further the amendment carried out to Section 85 by way of 85(3A), vide the Finance Bill 2012 wherein the power to condone has been reduced from 3 months to 1 month, once again shows that it is a considered, deliberated, specific intent of the Legislature to prescribe the specific time limit to condone the delay by the Commissioner (Appeals). 40. Coming to the facts of the present Appeals, there is absolu....
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....e higher appellate forum like Tribunal, High Court or Supreme Court, can review the dismissal of the Appeals by the Commissioner (Appeals) on account of time bar, has been dwelt in detail by the Hon'ble Supreme Court in the following cases : 2008 (221) E.L.T. 163 (S.C.) SINGH ENTERPRISES Vs CCE JAMSHEDPUR 8.The Commissioner of Central Excise (Appeals) as also the Tribunal being creatures of Statute are vested with jurisdiction to condone the delay beyond the permissible period provided under the Statute. The period upto which the prayer for condonation can be accepted is statutorily provided. It was submitted that the logic of Section 5 of the Indian Limitation Act, 1963 (in short the 'Limitation Act') can be availed for condonation of delay. The first proviso to Section 35 makes the position clear that the appeal has to be preferred within three months from the date of communication to him of the decision or order. However, if the Commissioner is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of 60 days, he can allow it to be presented within a further period of 30 days. In other words, thi....
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....s filed within the next 30 days. This Section 35 of CEA 1944, which is applicable for Central Excise cases, is para materia with Section 85 of the Finance Act 1994, which is applicable for Service Tax cases. While the condonable period was 30 days in case of Central Excise Appeals, the same is for Three (3) months for the Service Tax matters during the period under dispute. 46. The Hon'ble Apex Court has unequivocally held that once the condonable period of 30 days is exceeded, the Commissioner (Appeals) has no power to condone the same. It has also gone on to hold that even Section 5 of the Limitation Act, is fully excluded since the statute itself prescribes the specific period upto which the condonation can be granted. It further holds that, even Supreme Court cannot be vested with the power to condone this delay before the Commissioner (Appeals), since any such action would render the specific provision otiose. 47. This judgment of Supreme Court, which is in force as on date, has been relied on several occasions in several subsequent Supreme Court and High Court judgements. Some of the these cases discussed below : 2010 (257) E.L.T. 3 (S.C....
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....egislature intended to entertain the appeal by condoning the delay only upto the 30 days and not 60 days. 8. In our considered opinion, the aforesaid decision of this Court fully applies to the facts of the present case also and, therefore, we find no error in the judgment and order of the High Court. 48. In above case, the Supreme Court has once again reiterated their interpretation on the time limit set for the condonation to be granted by the Commissioner (Appeals). 49. In the following case in respect of the Electricity Act 2003, the issue cropped up regarding the power to condone the delay by Supreme Court: IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.1315 OF 2010 OIL & NATURAL GAS CORP.LTD. Vs GUJARAT ENERGY TRANSMISSION CORPORATION. LTD. & ORS ... [Judgement dated 1st March 2017] [Three Member Bench] [Relevant extracts] 2. The present appeal was presented before the Registry of this Court on 7.2.2008. An office note recorded that the appeal was barred by 71 days. The appeal was listed before the Bench on 29.1.2010 on which date th....
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....007. Therefore, the date of communication would be 28.9.2007 as per the principle laid down in Chhattisgarh State Electricity Board (supra). We entirely concur with the said view. In the case at hand, the certified copy was applied through email on 9.10.2007 and delivered on the same date. Be that as it may, the date of communication is 28.9.2007 and, therefore, the appeal preferred under Section 125 of the Act should have been filed within 60 days, i.e., 27.11.2007, to come within the period of limitation and further to be entitled to get the benefit of Section 5 of the Limitation Act, he should have filed the appeal within a further period of 60 days, i.e., 26.9.2008. Thus calculated, there is total delay of 71 days and 11 days beyond the expiry of 60 days the limit that is stipulated under Section 125 of the Act. 19. Another aspect needs to be adverted to. Mr. Agrawal submits that when the delay in review was condoned by this Court, the appellant should not be permitted to raise a preliminary objection. Suffice it to say, it is not an application under Section 5 of the Limitation Act which is to be entertained by the Court. We are singularly concerned with enterta....
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.... to September 2008 and the chronological details are under : Refund for the period : April to Sept 2008 Date of Order in Original : 24.03.2009 Date of filing Appeal before Commissioner (Appeals) : 09.07.2009 Date of OIA passed : 11.11.2009 Date of filing Appeal before Tribunal : 11.02.2010 Final Order by Tribunal remanding the matter : 15.09.2017 / 05.03.2018 Refund granted by Asst Commissioner : 10.04.2019 56. In the above case : a) The appellant has filed their Appeal before the Commissioner (Appeals) within 4 months, i.e well the time limit of 6 months. b) They have filed the Appeal before the Tribunal within 3 months from the date of OIA, which is well within the time limit. c) Therefore, in that case, the Commissioner (Appeals) did not dismiss the Appeal on account of time limit, but had rejected the same on merits. d) Accordingly, before the Tribunal there was no issue about the Appeal being dismissed on account of time-bar by the Commissioner (Appeals) unlike in the present case. e) The Tribunal had to deci....
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.... the third OIO was with him within next 2 days on 11.7.2009. Therefore, it is clear that the appellant was very much operating and functioning definitely till 9.7.2009. But he failed to file any Appeals in respect of these OIOs. The reason given by the appellant towards delayed filing [37 to 43 months] as recorded by the Commissioner (Appeals) in the OIA is as under: The cause of delay mentioned by the appellant in all the three applications for condonation of delay are that; their office was under repair and in the process and due to inadvertence the relevant documents including the Orders-in-Original got misplaced in their office; the dealing executive of the Service Tax matters resigned from the service of the Company and left without handing over of charge and due to his absence, the Company was handicapped and could not pursue the matter. 62. Therefore, their explanation that their dealing executive had resigned and left without handing over the charge and his absence cannot be taken on face value as they themselves had filed an Appeal in another case on 9.7.2009. At-least till that date, this person would have been available. 63. Having ....