TaxTMI 
TaxTMI 
2025 (12) TMI 1309
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....nterprises Vs CCE, Jamshedpur 2008 (221) ELT 163 (SC). 2.1 A show cause notice dated 02.11.2020 was issued to the appellant asking them to show cause as to why:- "(i) An amount of Rs 86,73,819/- (Rupees Eighty Six Lakh Seventy Three Thousand Eight Hundred Nineteen Only) should not be treated as the value of taxable services provided by them during the Financial Year 2015-16, and accordingly Service Tax amounting to Rs 12.57,704/- (Rupees Twelve Lakh Fifty Seven Thousand Seven Hundred Four Only) as detailed in Table A not pald/short paid including Education Cess, Secondary & Higher Education Cess and Swachh Bharat Cess should not be demanded and recovered from them under proviso to Section 73(1) of the Finance Act, 1994 as amended read with Section 174 of the CGST Act, 2017; (ii) Interest at the appropriate rate should not be charged and recovered from the 'Noticee' in respect of amount of service tax mentioned at S.No. (i) above under Section 75 of the Act readwith Section 174 of CGST Act, 2017, (iii) Penalty should not be imposed upon them in respect of amount of service tax mentioned at S.No (1) above under Section 78 of the 'Act' read wi....
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....lant along with the letter no. F.NO.01/APPL/MISC/LKO/2017/2919 DATED 05-10-2023 vide speed post no. EU169063348IN dated 11-10-2023 but the said speed- post was not delivered to the appellant and get returned to the registry of the Commissioner (Appeals) Customs, CGST &C.E Lucknow on 18-10-2023. Copy of the Envelop and Track report is available. ⮚ on 17/12/2023 the appellant received a phone call from the office of Commissioner of Central Excise and Service Tax (Appeals) Lucknow, and the office bearer told him that the said appeal does not falls in his jurisdiction and the right jurisdiction office to file said appeal is Commissioner of Central Excise and Service Tax (Appeals) Allahabad, he further told him that the said appeal returned to the appellant on the given address but the same is returned back with the remark of "insufficient address". However the address of the appellant is correct and sufficient to receive all mails. ⮚ on 18-12-2023 the counsel of the appellant received the said appeal from the office of the Ld.Comm. (Appeals) Customs, Cgst &C.E. Lucknow and on refiled before the correct jurisdictional first appellant authority i.e.before ....
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.... matters vide Section 83 of the Act. 4.1 It is further observed that the prescribed time limit to file the appeal is specified as two months under Section 85(3A) of the Act, and therefore, the present appeal filed by the appellant is beyond the time limit specified under Section 85(3A) of the Act in as much as they have received the impugned Order on 27.06.2023 and filed the present appeal on 08.01.2024 i.e., after a lapse of more than six months and beyond the time limit specified under Section 85(3A) of the Act, which provides as under: Section 85/3A): 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. 4.2 The above statutory provisions restrict any appeal to be ....
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.... on condonation of delay in filing appeal-No law declared in the impugned decision to the effect that Supreme Court can direct condonation even when the statute prescribed particular period of limitation Such stand would render specific provision providing for limitation rather otiose Section 35 of Central Excise Act, 1944. [para 10] 5. In view of the above, I hold that the present appeal filed by the appellant is not maintainable and as such, the same is rejected." 4.3 I find that the appeal has been definitely filed beyond the period of limitation prescribed by Section 85 (3A) of the Finance Act, 1994 and even beyond the period of one month which Commissioner (Appeals) could have condoned. I also find that appeal has been dismissed by following the decision of Hon'ble Supreme Court in the case of M/s Singh Enterprises (supra). 4.4 Appellant sought to justify the delay in filing the appeal by stating that they have filed the appeal with some delay (within condonable period) before the Commissioner (Appeals), Lucknow instead of Commissioner (Appeals), Allahabad having jurisdiction in the matter, when the papers were send to their address by speed-post dated 11.10.202....
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....uestions of law or sometime to substantial questions of law. Whenever such limitations are imposed, they are to be strictly followed. But in a case where there is no limitation on the nature of order or decision to be appealed against, as in this case, the right of appeal cannot be further curtailed by this Court on the basis of an interpretative exercise. Under Section 35 of FEMA, the legislature has conferred a right of appeal to a person aggrieved from 'any' 'order' or 'decision' of the Appellate Tribunal. Of course such appeal will have to be on a question of law. In this context the word 'any' would mean 'all'. 25. Justice Chitty in Beckett v. Sutton (51 Law Journal 1882 Chancery Division 432) had to interpret "any decree or order" in Section 1 of the Trustee Extension Act, 1852 and His Lordship held :- "..the words of the section are as wide as possible, and appear to me to apply adopting the language the Legislature has used - to "any decree or order" by which the Court directs a sale". 26. The word 'any dispute' is somewhat akin to 'any order' or 'any decision'. Any dispute, occurring in Section 51 of Arbitration Act 1975, has been interpreted to ....
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....: "(19). Appeal (1) Save as provided in sub-section (2) and notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908) or in the Code of Criminal Procedure, 1973 (2 of 1974) or in any other law, an appeal shall lie from every judgment or order, not being an interlocutory order, of a Family Court to the High Court both on facts and on law. (2) No appeal shall lie from a decree or order passed by the Family Court with the consent of the parties [or from an order passed under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974) : PROVIDED that nothing in this sub-section shall apply to any appeal pending before a High Court or any order passed under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974) before the commencement of the Family Courts (Amendment) Act, 1991] (3) Every appeal under this section shall be preferred within a period of thirty days from the date of judgment or order of a Family Court.] (Emphasis supplied) 31. Similarly, under Section 104 of the Code of Civil Procedure read with Order XLIII Rule 1 thereof, it has been indicated from which interlocutory order ....
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....Tax - 1998 (230) ITR 912 that the appellate jurisdiction depends upon the location/place of the authority, which had passed the order. In Ambica Industries v. Commissioner of Income Tax (supra), the principles of law was upheld. The appellant has not pleaded in his application for condonation of delay that he or his counsel had no knowledge that the appeal has to be filed in Allahabad High Court. Firstly he filed writ petition in which liberty was given on oral prayer to be converted into appeal and on the same day an interim order was passed without converting the writ petition into appeal. The Delhi High Court extended the time to deposit Rs. 3 lacs and inspite of objections taken by the counsel appearing for the department and noticing the judgment in Ambica Industries case, which is well known to the counsels appearing in the relevant branch of law, allowed the counsel appearing for the appellant some time to look into the aspect of jurisdiction of the Delhi High Court. From this date i.e. on 22nd September, 2010, when the counsel appearing for the appellant had taken time to look into the aspect of jurisdiction, it was open to them to withdraw the appeal at any time. They did ....
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....sue and; (5) Both the proceedings are in a court. The policy of 22. the Section is to afford protection to a litigant against the bar of limitation when he institutes a proceeding which by reason of some technical defect cannot be decided on merits and is dismissed. While considering the provisions of Section 14 of the Limitation Act, proper approach will have to be adopted and the provisions will have to be interpreted so as to advance the cause of justice rather than abort the proceedings. It will be well to bear in mind that an element of mistake is inherent in the invocation of Section 14. In fact, the section is intended to provide relief against the bar of limitation in cases of mistaken remedy or selection of a wrong forum. On reading Section 14 of the Act it becomes clear that the legislature has enacted the said section to exempt a certain period covered by a bona fide litigious activity. Upon the words used in the section, it is not possible to sustain the interpretation that the principle underlying the said section, namely, that the bar of limitation should not affect a person honestly doing his best to get his case tried on merits but failing because ....
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....ide litigious activity. After 22-9-2010 the pursuit of appeal in Delhi High Court was not with bona fide intention. 19.In Ramji Pandey & Ors. v. Swaran Kali - (2010) 14 SCC 492 the Supreme Court upheld the order of the Allahabad High Court by which the High Court dismissed a writ petition arising out of the orders of the District Court rejecting application under Section 5 read with Section 14 of the Act on the ground that the appellants were not only negligent but were acting and pursuing the entire matter without due diligence. They failed to appear and contest the suit on which ex parte decree was passed. Thereafter they failed to file appeal in the proper forum, which was brought to their notice at the initial stage by the respondents filing an objection. Despite the fact they did not take any step to withdraw the appeal and also did not appear in the High Court on dates fixed in the matter. The observations of the Supreme Court are quoted as below :- Considering the "15. entire records, we find that the appellants are not only negligent but have been acting and pursuing the entire matter without due diligence as would be apparent from the fact that they initi....
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.... Paragraphs 1, 2 and 3 of the applications for condonation of delay which are identical in all the cases were as under : The Appellant above named has preferred an Appeal against the 1. order dated 2nd August 2007 (hereinafter referred to as the "impugned order") passed by the Respondent No. 1 against the Appellant above named. The Appellant states that the impugned order was received by the Appellant on 5th October 2007. The Appellant states that there is a delay of 1056 days in filing the above appeal, the reasons for which are being stated in detail hereunder and, therefore, the Appellant above named prays that the delay in filing the present appeal may please be condoned. RELIEFS SOUGHT : 2. (a) That this Hon'ble Court be pleased to condoned the delay of 1056 days in filing the said Appeal; (b) That such further and other reliefs as the facts and circumstances may require. REASONS FOR THE DELAY : 3. The Appellant declares that there is delay of 1056 days in 3.1 filing the appeal as prescribed in the Limitation Act, 1963. The 3.2 Appellant further states that the delay occurred as the Writ Petition was filed before D....
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....nnot be pressed into service in view of the language of Section 35 of the Act and interpretation of similar provisions by this Court. There is another reason why the benefit of Section 14 of the 23. Limitation Act cannot be extended to the appellants. All of them are well conversant with various statutory provisions including FEMA. One of them was declared a notified person under Section 3(2) of the Special Court (Trial of Offences relating to Transactions in Securities) Act, 1992 and several civil and criminal cases are pending against him. The very fact that they had engaged a group of eminent Advocates to present their cause before the Delhi and the Bombay High Courts shows that they have the assistance of legal experts and this seems to the reason why they invoked the jurisdiction of the Delhi High Court and not of the Bombay High Court despite the fact that they are residents of Bombay and have been contesting other matters including the proceedings pending before the Special Court at Bombay. It also appears that the appellants were sure that keeping in view their past conduct, the Bombay High Court may not interfere with the order of the Appellate Tribunal. Therefore....
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....the appellants that they had filed appeals under Section 35 of the Act within 30 days computed from 26-7-2010. Therefore, the Division Bench of the Bombay High Court rightly observed that even though the issue relating to jurisdiction of the Delhi High Court to grant time to the appellants to file appeals is highly debatable, the time specified in the order passed by the Delhi High Court cannot be extended. In view of the above discussion, we hold that the impugned 25. order does not suffer from any legal infirmity." 21.In the present case also as in the case of Ketan V. Parekh (supra), the appellant was assisted and had the services of the counsel's, who are expert in the central excise and customs cases. They first filed a writ petition, and then without converting it into appeal obtained an interim order. They kept on getting the matter adjourned and thereafter in spite of specific objection taken, citing the relevant case law, which is well known, took time to study the matter. Thereafter, they took more than one year and three months, to study the matter to withdraw the appeal. They took a chance, which apparently looking to the facts in Ketan V. Parekh's cas....
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....ogic that provision such as Section 31 of the 1995 Act, cannot curtail the jurisdiction of the High Court under Articles 226 and 227 of the Constitution. This approach is faulty. It is not a matter of taking away the jurisdiction of the High Court. In a given case, the assessee may approach the High Court before the statutory period of appeal expires to challenge the assessment order by way of writ petition on the ground that the same is without jurisdiction or passed in excess of jurisdiction - by overstepping or crossing the limits of jurisdiction including in flagrant disregard of law and rules of procedure or in violation of principles of natural justice, where no procedure is specified. The High Court may accede to such a challenge and can also non-suit the petitioner on the ground that alternative efficacious remedy is available and that be invoked by the writ petitioner. However, if the writ petitioner choses to approach the High Court after expiry of the maximum limitation period of 60 days prescribed under Section 31 of the 2005 Act, the High Court cannot disregard the statutory period for redressal of the grievance and entertain the writ petition of such a party as a matt....
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....rt has dismissed the writ petition filed by the petitioner on the ground that there is an adequate alternative remedy by way of an appeal under Section 35 of the Central Excise Act. Learned Counsel for the petitioner submits that the petitioner will face certain difficulties in pursuing this remedy : (1) This remedy may not be any longer available to it because the appeal has to be filed within a period of three months from the date of the assessment order and delay can be condoned only to the extent of three more months by the Collector under Section 35 of the Act. It is pointed out that the petitioner did not file an appeal because the Collector (Appeals) at Madras had taken a view in a similar matter that an appeal was not maintainable. That apart, the petitioner in view of the huge demand involved filed a writ petition and so did not file an appeal. In the circumstances of the case, we are of the opinion that the ends of justice will be met if we permit the petitioner to file a belated appeal within one month from today with an application for condonation of delay, whereon the appeal may be entertained. Learned Counsel for the Revenue has stated before us that the Reve....
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.... the affidavit of Mr. Sreedhar Routh, Site Director of the respondent company (filed in support of the application for condonation of delay before the appellate authority), it is stated that the company became aware about the irregularities committed by its erring official (Mr. P. Sriram Murthy) in the month of July, 2018, which pre-supposes that the respondent must have become aware about the assessment order, at least in July, 2018. In the same affidavit, it is asserted that the respondent-company was not aware about the assessment order, as it was not brought to its notice by the employee concerned due to his negligence. The respondent in the writ petition has averred that the appeal was rejected by the appellate authority on the ground that it had no power to condone the delay beyond 30 days, when in fact, the order examines the cause set out by the respondent and concludes that the same was unsubstantiated by the respondent. That finding has not been examined by the High Court in the impugned judgment and order at all, but the High Court was more impressed by the fact that the respondent was in a position to offer some explanation about the discrepancies in respect of the volu....
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....arding the appeal and paid the appeal fees etc on 12/07/2023 and the counsel assured him about the filing of appeal within time. 3. That on 16/09/2023 the petitioner came to know that the appeal was not filed by his counsel due his professional busyness. 4. That on 01/10/2023 the another counsel filed the appeal before the Commissioner of Central Excise and Service Tax (Appeals) Lucknow . - fala NOTARY KUMAR . SINA RAKESH KI R. NO. 210/02 INDIA HE . AGRA OF * DISTT. A VERNMENT 5. That on 17/02/2023 the appellant received a phone call from the office of Commissioner of Central Excise and Service Tax (Appeals) Lucknow, and the office bearer told him that the said appeal does not falls in his jurisdiction and the right jurisdiction office to file said appeal is Commissioner of Central Excise and Service Tax (Appeals) Allahabad, he further told him that the said appeal returned to the appellant on the given address but the same is returned back with the remark of "insufficient address". However the address of the appellant is correct and sufficient to receive all mails. 6. That on 18/12/2023 received the said appeal from the office of Commissioner....
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....जारी की गयी है। Copy of this order is granted free of charge for private use of the person to whom It is issued, 2. इस आदेश से पà¥à¤°à¤à¤¾à¤µà¤¿à¤¤ वà¥à¤¯à¤•à¥à¤¤à¤¿ वितà¥à¤¤ अधिनियम, 1994 की धारा 85 अथवा केनà¥à¤¦à¥à¤°à¥€à¤¯ उतà¥à¤ªà¤¾à¤¦ शà¥à¤²à¥à¤• अधिनियम, 1944 की धारा 35 (जो à¤à¥€ लागू हो) के अनà¥à¤¤à¤°à¥à¤—त à¤à¤¸à¥‡ निरà¥à¤£à¤¯ या आदेश की सूचना की तारीख से साठदिनों के अंदर आयà¥à¤•à¥à¤¤ (अपà¥....