TaxTMI 
TaxTMI 
2025 (6) TMI 1095
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....al year 2015-16 raising demand comprising of service tax and penalty. The said order dated 09.04.2024 was served on the Petitioner on 12.04.2024. 2.1. Relying on provisions of sub-section (3A) of Section 85 of the Finance Act, 1994, he submitted that the appeal was required to be "presented within two months from the date of receipt of the decision or order of such adjudicating authority". Therefore, the Appellate Authority is empowered under proviso to sub-section (3A) ibid. to condone the delay in presenting the appeal within a further period of one month. Thus, in toto a period of three months is available for the petitioner to show sufficient cause for the purpose of maintaining the appeal under Section 85 of the Finance Act. The Petitioner having filed the appeal on 12.07.2024, the Appellate Authority should have exercised the power under proviso to sub-section (3A) of Section 85 of the Finance Act, 1994. 2.2. He strenuously urged that since the Appellate Authority has not applied his conscientious discretion as conferred on him under the statute misdirected himself in computation of period of limitation erroneously and improper application of mind failed to calculate the co....
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....on 12.07.2024. It is, therefore, abundantly clear that the Appellate Authority has misguided himself and his approach in computation of period of limitation is tainted. The Appellate Order dated 23.12.2024 is faulted with in view of Section 85(3A) of the Finance Act, 1994 read with Section 12 of the Limitation Act, 1963 and Section 9 read with Section 3(35) of the General Clauses Act, 1897. 4.2. The relevant provisions may be referred to, to have better comprehension of computation of period of limitation contained in Section 85 of the Finance Act, 1994: (i) Section 85(3A) of the Finance Act: "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." (ii) Section 12 of the Limitation Act, 1963:....
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....d. In this case, the period of limitation for filing a petition under Section 34 will have to be reckoned from 30.06.2022, when the appellants received the award. In view of Section 12(1) of the Limitation Act, 30.06.2022 will have to be excluded while computing the limitation period. Thus, in effect, the period of limitation, in the facts of the case, started running on 01.07.2022. The period of limitation is of three months and not ninety days. Therefore, from the starting point of 01.07.2022, the last day of the period of three months would be 30.09.2022. As noted earlier, the pooja vacation started on 01.10.2022." 4.4. It is apposite to refer to the principle of calculation of period of limitation as suggested in the judgment of the Hon'ble Supreme Court in the case of Rameshchandra Ambalal Joshi vs. State of Gujurat and another, (2014) 11 SCC 759, wherein it has been observed as follows: "*** 12. The first question which calls for our answer is the meaning of the expression "month" : whether it would mean only a period of 30 days and, consequently, whether six months would mean a period of 180 days. The word "month" has been defined under Section 3(35) of the General Cl....
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.... "from" in Section 138(a) requires exclusion of the first day on which the cheque was drawn and inclusion of the last day within which such act needs to be done. In other words, six months would expire one day prior to the date in the corresponding month and in case no such day falls, the last day of the immediate previous month. Hence, for all purposes, the date on which the cheque was drawn i.e. 31.12.2005 will be excluded and the period of six months will be reckoned from the next day i.e. from 01.01.2006; meaning thereby that according to the British calendar, the period of six months will expire at the end of the 30th day of June, 2006. Since the cheque was presented on 30.06.2006, we are of the view that it was presented within the period prescribed." 4.5. Taking note of very many decisions, in M/s. Brand Protection Services Private Limited Company Vrs. State of Bihar and others, 2025 SCC OnLine Pat 772 reference has been made to State of H.P. Vrs. Himachal Techno Engineers, (2010) 12 SCC 210 and the Patna High Court held, "24. In yet another case of Himachal Techno Engineers (supra), the same question fell for consideration in relation to Section 34(3) and its proviso un....
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.... be the commencement date of limitation for the purpose of Section 85(3A) of the Finance Act, 1994. 4.8. To fortify such view, provisions of Section 12 of the Limitation Act, 1963, read with the interpretation set forth in decisions referred to supra unequivocally manifest that the delay in presenting the appeal under Section 85(3A) of the Finance Act, 1994 could be condoned for a further period of one month, if the same is presented beyond the period of two months reckoned on and from 13.07.2024. 4.9. Examining the appellate order dated 23.12.2024 juxtaposed with the aforesaid conspectus of factual matrix coupled with the statutory provisions and interpretation set forth by Courts, this Court is left with no other option but to set aside the same. It is apparent from the perusal of appellate order that while calculating the Appellate Authority having taken the date of receipt of Order-in-Original by the petitioner as the starting point of limitation, he fell in error warranting intervention of this Court in exercise of writ jurisdiction. 4.10. As it transpires from the impugned order, the Appellate Authority has not borne in mind the purport of Section 3(35) read with sub-secti....