TaxTMI 
TaxTMI 
2025 (5) TMI 1825
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....all 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 4.2 The above statutory provisions restrict any appeal to be filed within a period of two months from the date of receipt of the decision or order of the Adjudicating Authority and the proviso to Section 85(3A) of the Act above empowers the Commissioner of Central Excise (Appeals), to allow the appeal to be filed within a further period of one month, if he is satisfied that the appellant was prevented by sufficient cause for presenting the appeal within the aforesaid period of two month. 4.3 I find that in the instant case, the appellant has requested for condonation of delay. Since, the Commissioner (Appeals) can condone the delay of one month ....
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....on that Commissioner (Appeals) could not have condoned the delay beyond the period of 30 days after two months from the date of receipt of the order. 2.1 Appellant in the ground of appeal have stated as follows:- "The short question involved in this appeal, as to whether when the appellant sent their appeal to the learned Commissioner(Appeals) CGST & Central Excise, Allahabad along with their condonation of delay application through Fast DTDC Courier, from Agra, having receipt No. V93949009 Dated 22/10/2022, which was sent by them well within the time limit, as specified under Section 85(3A) of the Finance Act, 1994 & which reached Allahabad on 27.10.2022 and attempt was by courier company to deliver the same on 27.10.2022/28.10.2022[Thursday- Friday], but the same could not delivered on that day, as no one found to receive the same in the Office of the Commissioner(Appeals) CGST & Central Excise, Allahabad, That again the attempt was made by Courier Company to deliver the same on 29.10.2022[ on Saturday], 31.10.2022[ on Monday], but the same was not received by anyone in the office of the Commissioner(Appeals) CGST & Central Excise, Allahabad, however the same was deli....
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.... been received in the office of the Commissioner (Appeals) on 01.11.2022 for that reason the same has been dismissed. 4.3 The impugned order does not give any details with regards to the date of receipt and reason for delay in receipt. In the grounds of appeal reproduced above Appellant have categorically stated that the appeal was dispatched well within expiry of 30 days of extended period of limitation and even delivery was attempted by the Courier Company on 27th, 28th, 29th and 31st November, 2022, however, the same was not delivered as none was found in the office of the Commissioner (Appeals) to receive the same. Finally it was delivered on 31.11.2022. 4.4 They have supported their submissions by the tracking details of the Courier Company which is reproduced below:- 4.5 From the perusal of the above track consignment status it is evident that the said appeal was booked for being forwarded to the office of Commissioner (Appeals) on 22 October, 2022 and it was received and out for delivery on 27th October, 2022 but could not have been delivered for some reason or other till 01st November, 2022. Appellant having dispatched the appeal within the extended period of limit....
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.... 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 thereby has been given a reasonable opportunity of showing cause against such enhancement. (5) Subject to the provisions of this Chapter, in hearing the appeals and making order under this section, the Commissioner of Cen....
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....e 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 order before the Commissioner of Central Excise (Appeals) within 60 days from the date of communication of such decision or order. As per the proviso, the appellate authority may allow presentation of such appeal within a further period of 30 days if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal. 24.1 Without much deliberation at this stage what is immediately noticeable is that under Section 35 of the Central Excise Act, 1944, the limitation period is 60 days from the date of communication, extendable by another period of 30 days. On the other hand, in sub-section (3A) of Section 85 of the Finance Act, 1994, as amended, the limitation period for presentation of appeal is two months from the date of receipt of ....
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....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 4-12-2019. Thus Commissioner (Appeals) can condone the delay upto one month only if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within prescribed two months. But in the present case, the appellant has filed the appeal after three months . Therefore, the delay of more than one month cannot be condoned at my level in accordance with Section 35 of the Central Excise Act, 1944/Section 85(3A) of the Finance Act, 1994. Accordingly, the above referred appeal is time-barred and cannot be entertained under Section 35 of the Central Excise Act, 1944/Section 85(3A) of the Finance Act, 1994. 19. In Tops Security Ltd. v. CCE, Hyderabad, the same provision of the Finance Act, 1994 (Section 85) was considered and it was held that Commissioner (Appeals) has no power to cond....
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.... 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 into the merits of the case, I pass the following order : ORDER The application for condonation of delay in filing the appeal in respect of appeal No. 199/2019-20 is rejected. The main appeal, being time-barred, is also dismissed in limine without going into merits of the case." 25.1 While there is no dispute to the proposition that Section 5 of the Limitation Act, 1963 would stand excluded when the statute itself provides the limitation period for filing of appeal as well as the period beyond the limitation period within which the delay in filing the appeal can be condoned. But the observation of respondent No. 1 that the provisions of Section 85 of the Finance Act, 1994 and Section 35 of the Central Excise Act, 1944 are pari materia may not be correct. ....
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....mitation 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 period of a calendar month. It was clarified that if the month is April, June, September or November, the period comprising the month will be 30 days; if the month is January, March, May, July, August, October or December, the month will comprise of 31 days; but if the month is February, the period will be 29 days or 28 days depending upon whether it is a leap year or not. After referring to Section 3(35) of the General Clauses Act, it was held that the general rule is that the period ends on the corresponding date in the appropriate subsequent month irrespective of some months being longer than the rest. Therefore, it was held that when the period prescribed is three months (as contrasted from 90 days) from a specific date, the said period w....
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....ub-section (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 excluding the first in a series of days or any other period of time, to use the word 'from', and, for the purpose of including the last in a series of days or any other period of time, to use the word 'to'. (2) This section applies also to all Central Acts made after the third day of January, 1868, and to all Regulations made on or after the fourteenth day of January, 1887." 30.2 As per sub-section (1) of Section 9 when the word 'from' is used, the first day in a series of days or any other period of time is to be excluded. But when the word 'to' is used, the last day in a series of days or any other period is to be included. Thus, Section 9 of the General Clauses Act statutorily recognizes that while comp....
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....eels (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 30-8-2019. As per Section 9 of the General Clauses Act, this date would have to be excluded while counting the limitation period of two months which would then commence from 31-8-2019. We have also seen that while construing the word 'month', it would mean a month as reckoned according to the British calendar, number of days in a month being immaterial. Therefore, the two months' limitation period was available to the petitioner up to 31-10-2019. If we add the extended period of limitation of further one month, it would mean that delay could be condoned till 31-11-2019 because the total period of three months had commenced from 31-8-2019 and would be available till 31-11-2019 but because there is no 31 days in November, the extended period of limitation would spill over to....
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....he extended period of limitation, 1-12-2019 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 jurisdiction under Article 226 of the Constitution of India ought to have entertained a challenge to the assessment order on the sole ground that the statutory remedy of appeal against the said assessment order stood foreclosed by the law of limitation. As would be evident from the above, the issue before the Supreme Court was quite different from the one which we are adjudicating in the present proceeding. Nonetheless, we may mention that Supreme Court considered the provision of filing appeal under the Andhra Pradesh Value Added Tax Act, 2005. As per Section 31 of the said Act, an appeal could be preferred against the assessment order within 30 day....
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.... Kella Appalaswamy And Sons [[1977]106 ITR 487 (ORISSA)] Hon'ble Orissa High Court held as follows: "9. Obviously, the answer rendered by the Full Bench was in the facts and cicrumstances of that case. As the facts of that case show, on the 56th day, the assessee had transmitted the memorandum of three appeals by registered post from Cuttack to the Registrar of the Appellate Tribunal at Bombay and the appeals were received on April 7, 1954, one day after the expiry of the period prescribed under Section 33 of the Indian Income-tax Act of 1922. The Tribunal while rejecting the application for condonation of delay had taken the view that there was no justification for the appellant to wait till the 56th day because it should have known that under ordinary circumstances transmission of documents sent under registered post from Cuttack to Bombay would take more than four days. In Govinda Chowdhury's case [1960] 40 ITR 93 (Orissa) [FB] the Full Bench of this court took the view, reversing an earlier decision of this court in the case of Sri Popsing Rice Mill v. Commissioner of Income-tax [1949] 17 ITR 420 (Orissa) that the postal department was an agent of the sender and no....
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....two days. That fact has also been established in this very case because the memorandum of appeal despatched on 13th January, 1971, has been received in the Tribunal's office on 15th January, 1971. Taking judicial notice of the manner in which money order remittances are sent, there is no justification for the money order remittance taking more than a day or two beyond the period required for the postal mail. Taking this aspect of the matter into consideration, where an assessee transmitted the appeal nine days before limitation was to set in, in the facts of the case, it cannot be said that there was any negligence or default on the part of the assessee. As a reasonable person, bona fide intending to prefer an appeal against the decision of the Appellate Assistant Commissioner, the assessee, in usual course and taking due precaution in the matter, despatched the memorandum of appeal and remitted the requisite fee. The postal delay in this case is of an unusual type and cannot be taken to be an event of the ordinary run. If the Tribunal had looked at the matter with an open mind and being conscious of the fact that it has jurisdiction to condone the delay, we do not think it wou....
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.... outside the station, he sends the papers by registered post. Obviously, the cash cannot accompany the application and he has to send it either through post office or through some bank. If under the note to the form a payment to the bank and the receipt thereof is considered as sufficient payment within time, we see no reason why the assessee, who has made a payment to the post office and has attached the receipt of such payment with the papers, should not be treated as having substantially complied with the requirements of the Act." 13. The conclusion of Dayal C.J. does not stand alone in the field. We do not propose to refer to the cases relied on in the said decision or otherwise cited at the Bar because, in our view, the approach is very appropriate and wholesome. It must always be remembered as was pointed out by Lord Buckmaster in Montreal Street Railway Company v. Normandin [1917] AC 170 (PC) that all rules of this type are nothing but provisions intended to secure proper administration of justice. It is, therefore, essential that they should be made to serve and be subordinate to that purpose. In the case of State of Gujarat v. Ramprakash P. Puri [1970] 2 SCR 875 (....
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....®à¥‚ल आदेश संखà¥à¤¯à¤¾: 23/ST/ADJ/DC/JHS/2022-23 'जारी होने की तिथि : 25.05.2022 DIN: 20220553ZW0500222134B आदेश पारित करने वाले अधिकारी का नाम : शà¥à¤°à¥€ मनोज कà¥à¤®à¤¾à¤° तà¥à¤°à¤¿à¤ªà¤¾à¤ ी, संयà¥à¤•à¥à¤¤ आयà¥à¤•à¥à¤¤, केंदà¥à¤°à¥€à¤¯ वसà¥à¤¤à¥ à¤à¤µà¤‚ सेवा कर तथा केंदà¥à¤°à¥€à¤¯ उतà¥à¤ªà¤¾à¤¦ शà¥à¤²à¥à¤•, मंडल à¤à¤¾à¤à¤¸à¥€ पà¥à¤°à¤¸à¥à¤¤à¤¾à¤µà¤¨à¤¾ / PREAMBLE 01. आदेश की यह पà¥à¤°à¤¤à¤¿ उस वà¥....
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....) नियमावली 2001 के नियम 3 के उप नियम (2) में विनिरà¥à¤¦à¤¿à¤·à¥à¤Ÿ वà¥à¤¯à¤•à¥à¤¤à¤¿à¤¯à¥‹à¤‚ दà¥à¤µà¤¾à¤°à¤¾ हसà¥à¤¤à¤¾à¤•à¥à¤·à¤° किये जायेंगे । उकà¥à¤¤ अपील को चार पà¥à¤°à¤¤à¤¿à¤¯à¥‹à¤‚ में दाखिल किया जाये तथा जिम आदेश के विरà¥à¤¦à¥à¤§ अपील की गयी जो, उसकी à¤à¥€ उतनी ही पà¥à¤°à¤¤à¤¿à¤¯à¤¾à¤ संलगà¥à¤¨ की जाà¤à¤ (उनमे से कम à¤....