TaxTMI 
TaxTMI 
2025 (7) TMI 4
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....s], Central Excise & Customs [the respondent no. 3] whereby the appeal preferred by the petitioners has been dismissed, without going into the merits, on the ground that the appeal is time-barred. 2. It is stated that the petitioner no. 1 is a partnership firm ['the petitioner firm', for short] having its registered office at Sivasagar, District - Sivasagar. The petitioner no. 2 is one of the partners in the petitioner firm and its managing partner. The petitioner firm is engaged in the business of execution of various contracts and trading of construction materials. For the purpose of carrying on its business, the petitioner firm had got itself registered under Section 69 of the Finance Act, 1994 [now omitted by the Central Goods & Services Tax (CGST) Act, 2017] read with Rule 4 of the Service Tax Rules, 1994 with Registration no. AABFI7196NSD001. 3. The petitioners have stated that during the Financial Years : 2014-2015 to 2017-2018, the petitioner firm had executed contract-works awarded to it by M/s Shyama Power India Limited and M/s Neccon Power & Infra Limited, as a sub-contractor. The petitioners have contended that no service tax was collected from the petitioner firm....
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.... 6. In the Demand-cum-Show Cause Notice, the respondent no. 4 had indicated that on scrutiny of various records viz. Form 26AS [Income Tax], Audited Balance Sheets and ST-3 Returns, it was revealed that during the period : Financial Year : 2014 - 2015 [October - March] to Financial Year : 2017-2018 [upto June, 2017], the assessee-noticee had provided taxable services to a number of organizations and on the basis of the documents submitted, that is, work orders / contract agreements issued by / executed with the aforesaid service receivers, the classification of service provided was not readily ascertainable. During investigation, it was found out that the assessee-noticee had not disclosed the gross amount received during the period in the prescribed ST-3 Returns with an intention to deliberately suppress the information from the Department in contravention of Section 67 read with Section 70 of the Finance Act and the rules made thereunder. In the Demand-cum-Show Cause Notice, it was further recorded that it appeared that the assessee-noticee in contravention of Section 68 of the Finance Act had not discharged the full service tax against the taxable amount received from the vario....
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.... 21.03.2024 :- ORDER 1. I confirm Service Tax [including cesses] Rs. 3,39,015.00 [Rupees Three Lakh Thirty Nine Thousand Seven Hundred and Fifteen only] under Section 73[2] of the Finance Act, 1994. I drop demand for payment of Rs. 21,976.00 [Rupees Twenty One Thousand Nine Hundred and Seventy Six only]. 2. I order payment of interest on confirmed amount of demand mentioned at sl. no [1], under Section 75 of the Finance Act, 1994. 3. I impose penalty of Rs. 3,39,015.00 [Rupees Three Lakh Thirty Nine Thousand Seven Hundred and Fifteen only] under Section 78 of the Finance Act, 1994. However, the penalty will be reduced to 25% if service tax along with applicable interest and reduced penalty is paid within 30 days of received of this order. I refrain from impose penalty under section 76 of the finance Act, 1994, as the penalty under Section 78 of the said Act is already imposed. 9. The petitioners have stated that it received a copy of the Order-in-Original dated 21.03.2024 on 01.04.2024. Aggrieved by the Order-in-Original dated 21.03.2024, the petitioners decided to prefer an appeal under Section 85 of the Finance Act read with Section 35 of....
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....e Authority observed that the appeal preferred by the appellant could not, therefore, be taken up and hence, rejected it without going into the merits. The operative parts of the impugned Order-in-Appeal dated 02.12.2024 passed by the Appellate Authority read as under:- 9. Discussion & findings: 9.1. I find that sub-section [3A] of Section 85 of the Finance Act, 1994 provides that : '[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.' 9.2. In the instant case, the Order-in-Original was issued 21.03.2024 and has been claimed by the appellant to have been communicated on 01.04.2024. Accordingly, going by the above-mentioned S. No. 3A of the Section 85, the period of two months in the instant case would have expired on 31.05.2024 whereas the appeal has been filed on 01.07.2024. Even the one [1] month extension that the Commissioner [Appeals] can allow for, expired on 30.06.2024. Nonetheless, opportunities for personal hearing ....
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....07.2024 and as the appeal was filed on 01.07.2024, the appeal had to be treated as one filed within the extended period of limitation in terms of Section 10 of the General Clauses Act, 1897. In support of his submissions, Mr. Mishra has placed reliance upon the decisions of the Hon'ble Supreme Court of India in State of Himachal Pradesh and another vs. Himachal Techno Engineers and another, reported in [2010] 12 SCC 210; and State of Madhya Pradesh and another vs. Pradeep Kumar and another, [2000] 7 SCC 372. 17. Au contraire, Mr. Keyal, learned Standing Counsel, CGST has supported the findings of the Appellate Authority, recorded in the Order-in-Appeal dated 02.12.2024. He has submitted that since the period of limitation is to be counted from 01.04.2024, the Appellate Authority has rightly observed that the period of two months had expired on 31.05.2024. Therefore, the extended period of limitation had also expired on 30.06.2024. Since the petitioner-assessee had filed its appeal only on 01.07.2024, the date of filing of the appeal was clearly beyond the permissible period of limitation. When an appeal is preferred beyond the normal period of limitation, the applicant is requir....
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....ted 02.12.2024 under Section 86 of the Finance Act before the CESTAT. Yet, the petitioner firm-assessee has preferred the instant writ petition under Article 226 of the Constitution of India against the Order-in-Original dated 02.12.2024 before this Court. From the case records, it is noticed that the writ petition was filed on 05.02.2025, which is, otherwise, within the limitation period of three months for preferring the statutory appeal under Section 86 of the Finance Act against the Order-in-Appeal dated 02.12.2024. 21. Since an issue of maintainability of the writ petition has been raised on the premise that there is a provision in place for preferring a statutory appeal, the issue needs to be addressed first before proceeding further. In this connection, the decision of the Hon'ble Supreme Court of India in M/s Godrej Sara Lee Limited vs. Excise and Taxation Officer-cum-Assessing Authority and others, reported in [2023] 3 SCR 871, can be appropriately referred to. 22. The issues of maintainability and entertainability of a writ petition under Article 226 of the Constitution of India, despite alternative remedy provided by the relevant statutes, have come up for discussi....
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....sions, it has been observed that when the writ petition raises a pure question of law and if investigation into facts is unnecessary, the High Court can entertain a writ petition in its discretion even though the alternative remedy is not availed of. It has been observed that where the controversy is a purely legal one and it does not involve disputed questions of fact, but only questions of law, then it should be decided by the High Court instead of dismissing the writ petition on the ground of an alternative remedy being available. 23. It is a settled proposition that the doctrine of merger would not be applicable to a case where an appeal is dismissed on the ground of limitation, without going into the merits. It has been held in Chandi Prasad vs. Jagdish Prasad, [2004] 8 SCC 724, to the effect that when an appeal is dismissed on the ground that delay in filing the same is not condoned, the doctrine of merger shall not apply. The Hon'ble Supreme Court of India in Raja Mechanical Company Private Limited vs. Commissioner of Central Excise, Delhi-I, [2012] 12 SCC 613, after referring to the decision in Chandi Prasad [supra], has held that if for any reason an appeal is dismissed....
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....e equal to two months. Similarly, a period of thirty days cannot, always, be treated equal to one month. There cannot be any doubt that the statutory prescription contained in Section 85 of the Finance Act would prevail in any such situation. 25. It is discernible from the operative parts of the Order-in-Original dated 02.12.2024 itself, extracted above, that the factual premise within which the issue is required to be decided is not in dispute. The Order-in-Original was passed on 21.03.2024. The Order-in-Original dated 21.03.2024 was thereafter, communicated to or received by the petitioner-assessee on 01.04.2024. The appeal under Section 85 of the Finance Act was thereafter, filed on 01.07.2024 and it was also received and acknowledged on 01.07.2024. In the context of the case, the dates, 01.04.2024 and 01.07.2024 are crucial ones. 26. There is one more aspect which needs a dilation. The appeal which was filed on 01.07.2024, was decided on 02.12.2024 by the Order-in-Appeal. By Section 83 of the Finance Act, 1994 ['the Finance Act', for short], certain provisions of the Central Excise Act, 1944 ['the Central Excise Act', for short], as in force from time to time, have been m....
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....rovided that no appeal against an assessment shall be entertained unless it was accompanied by satisfactory proof of the payment of the amount of tax admitted by the appellant to be due. It has been observed to the effect that the word 'entertain', according to dictionary also, means 'admit to consideration'. Explaining further, the Court has observed that the word, 'entertain' means the first occasion on which the Court takes up the matter of consideration. The meaning of the word, 'entertain' has also been considered in Hindusthan Commercial Bank Ltd vs. Punnu Sahu [Dead] Through Legal Representatives, [1971] 3 SCC 124; and Durga Hotel Complex vs. Reserve Bank of India and others, [2007] 5 SCC 120. A distinction has been carved out between 'receive' or 'accept' on one hand and 'entertain' on the other hand. It has, thus, been held that the expression, 'entertain' means to 'adjudicate upon' or to 'proceed to consider on merits' and not 'initiation of proceeding' alone. Going by the above exposition, it is evident that when the Appellate Authority considered the appeal for entertainment, the pre-requisite for entertaining the appeal with regard to pre-deposit was fulfilled. 28. ....
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....xim vigilantibus non dormientibus jura subveniunt [law assists those who are vigilant and not those who sleep over their rights]. But even a vigilant litigant is prone to commit mistakes. As the aphorism 'to err is human' is more a practical notion of human behaviour than an abstract philosophy, the unintentional lapse on the part of a litigant should not normally cause the doors of the judicature permanently closed before him. The effort of the court should not be one of finding means to pull down the shutters of adjudicatory jurisdiction before a party who seeks justice, on account of any mistake committed by him, but to see whether it is possible to entertain his grievance if it is genuine. * * * * 19. The object of enacting Rule 3-A in Order 41 of the Code seems to be twofold. First is, to inform the appellant himself who filed a time-barred appeal that it would not be entertained unless it is accompanied by an application explaining the delay. Second is, to communicate to the respondent a message that it may not be necessary for him to get ready to meet the grounds taken up in the memorandum of appeal because the court has to deal with application for condona....
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....egulations, made either by the Parliament or the Legislature, the words and phrases as defined in the General Clauses Act and the principles of interpretation laid down in the General Clauses Act are to be necessarily kept in view. If while interpreting a statutory law, any doubt arises as to the meaning to be assigned to a word or a phrase or a clause used in an enactment and such word, phrase or clause is not specifically defined, it is legitimate and indeed mandatory to fall back on the General Clauses Act. When there is repugnancy or conflict as to the subject or context between the General Clauses Act and a statutory provision which falls for interpretation, the Court must necessary refer to the provisions of the statute. This Court is of the considered view that in the absence of any specific provision in the Finance Act and the Central Excise Act regarding calculation of time, the provisions of the General Clauses Act, 1897 are clearly referrable and applicable to the case in hand. 33. Section 2 [35] of the General Clauses Act, 1897 ['the General Clauses Act', for short] has defined 'month' as a month reckoned according to the British calendar. Thus, it is clear that a mo....
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....ified number of months that had elapsed after the occurrence of a specified event, such as the giving of a notice, the general rule is that the period ends on the corresponding date in the appropriate subsequent month irrespective of whether some months are longer than others. To the same effect is the decision of this Court in Bibi Salma Khatoon vs. State of Bihar, [2001] 7 SCC 197. 18. Therefore when the period prescribed is three months [as contrasted from 90 days] from a specified date, the said period would expire in the third month on the date corresponding to the date upon which the period starts. As a result, depending upon the months, it may mean 90 days or 91 days or 92 days or 89 days. 35. Noticeably in sub-section [1], sub-section [3A] and proviso to sub-section [3A] of Section 85 of the Finance Act, the same unit of time, 'month' is used and there is no mention of days. 36. The provisions of Section 9 of the General Clauses Act have contained the manner for calculation of time. Section 9 of the General Clauses Act has provided for commencement and termination of time. For ready reference, Section 9 is quoted hereinbelow:- 9. Commencement and ter....
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.... so construed as to effectuate and not to defeat the intention of Parliament or of the parties, as the case may be. Expressions such as 'from such a day' or 'until such a day' are equivocal, since they do not make it clear whether the inclusion or the exclusion of the day named may be intended. As a general rule, however, the effect of defining a period in such a manner is to exclude the first day and to include the last day. 38.1. As regards Section 9 of the General Clauses Act, 1897, the decision in Tarun Prasad Chatterjee vs. Dinanath Sharma [supra] has observed as under : 12. Section 9 says that in any Central Act or Regulation made after the commencement 0f of the General Clauses Act, 1897, 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 period of time, to use the word 'to'. The principle is that when a period is delimited by statute or rule, which has both a beginning and an end and the word 'from' is used indicating the beginning, the opening day is to be excluded and if the last day is to be included t....
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....er in the due course of the cheque 'within' fifteen days of the receipt 'of ' the demand notice, the cause of action to file the complaint under Section 142[b] of the NI Act arises 'within' one month 'of ' the date on which the cause of action arises. In Econ Antri Limited [supra], it has been held that it is not possible to hold that the word 'of ' occurring in the proviso [c] of Section 138 and Section 142[b] of the Negotiable Instruments [NI] Act is to be interpreted differently as against the word 'from' occurring in Section 138[a] of the said Act; and that for the purposes of Section 142[b], which prescribes to the effect that the complaint is to be filed 'within' thirty days 'of ' the date on which the cause of action arises, the starting date on which the cause of action arises should be included for computing the period of thirty days. It has been further held that the words 'of ', 'from' and 'after ' may, in a given case, mean really the same thing. Quoting from Stroud's Judicial Dictionary, it has been observed that the word 'of ' is sometimes equivalent of 'after '. 40. In Saketh India Ltd. and another vs. India Securities Ltd., reported in [1999] 3 SCC 1, it has been....