2015 (4) TMI 322 - HC - Service Tax

Condonation of delay - Inordinate delay of 1085 days - Power of Commissioner to condone delay beyond condonable period - Held that - It is to be noted that under Section 85(3) of the Finance Act, the appeal to Commissioner (Appeals) was to be filed within three months from the date of communication of the order and as per the proviso to Section 85(3), a further period of three months could be granted where sufficient cause was shown. The Commissioner (Appeals) has no power to condone such abnormal delay. - when the scheme of the special law which herein in this case is the Customs Act and the nature of the remedy provided therein is such that the legislature intended it to be a complete code by itself, which alone should govern the several matters provided by it, it is clear that the provisions of the Limitation Act are necessarily excluded, the benefits conferred therein cannot be called in aid to supplement the provisions of the Act, this Court is of the view that the delay which is beyond the statutory period of limitation, cannot be condoned. Court is not inclined to grant the relief sought for in the writ petition and the same are dismissed - Decided against assessee.

Summary

Issues:
Delay in filing appeal before Commissioner (Appeals) under Section 85(3) of the Finance Act, 1994.

Analysis:
The petitioner filed a Writ Petition seeking a writ of certiorari to challenge the Order in Original passed by the 3rd respondent, confirming a demand for service tax, education cess, and penalty. The petitioner's appeal before the Commissioner (Appeals) was rejected as time-barred due to a delay of 1085 days. The Court noted that under Section 85(3) of the Finance Act, the appeal must be filed within three months, with a further three-month extension possible for sufficient cause. Referring to a similar provision in the Customs Act, the Court emphasized that the appellate authority cannot condone delays beyond the statutory period, as seen in previous Supreme Court decisions interpreting similar statutes.

The Court cited a Supreme Court decision that clarified the exclusion of the Limitation Act in cases where the special law provides a specific time limit for filing appeals. It was emphasized that the nature of the remedy and the legislative intent of the special law determine the applicability of the Limitation Act. The Court held that the delay in filing the appeal, which exceeded the statutory limitation period, cannot be condoned. Relying on the principle that the special law constitutes a complete code governing the matters provided by it, the Court dismissed the writ petition and associated miscellaneous petitions, without granting the relief sought by the petitioner.