2015 (7) TMI 858 - HC - Service Tax

Waiver of pre deposit - Penalty u/s 76, 77 & 78 - Bar of limitation - Held that - Sub-Section (3) of Section 85 of the Finance Act, 1994 provides that an appeal shall be presented within three months from the date of receipt of the decision or order of the Central Excise Officer, relating to service tax, interest or penalty under this Chapter provided that the Collector of Excise (Appeals) may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of three months, allow it to be presented within a further period of three months. Mr. R Deb Nath, learned CGC appearing for the respondents by referring to the said proviso to Sub-Section (3) of Section 85 of the Finance Act, 1994 strenuously contended that the limitation period of three months for filing the appeal against the order can be extended for a further three months that too only when the Collector of Excise (Appeals) satisfied that the appellant was prevented for sufficient cause from presenting the appeal within 3 (three) months. Appellant contended that the appeal could not be filed against the original order i.e. un-certified copy furnished by the Commissioner under the letter dated 17.08.2010 and it was only for private use. Therefore, the appellant filed the application for obtaining the certified copy of the order dated 17.08.2010, which must bear a court fee stamp for filing appeal. He further contended that the original order i.e. un-certified copy furnished under the said letter dated 17.08.2010 did not bear a court fee stamp - appeal is remitted back to the tribunal to decide the issue indicated - Decided in favour of assessee.

Summary

Issues:
- Appeal against the judgment and order of the appellate tribunal dismissed on the ground of limitation.
- Determination of the period of limitation for filing an appeal.
- Interpretation of whether the period of limitation is counted from the date of receiving the copy of the original order or the certified copy of the order.
- Applicability of the proviso to Sub-Section (3) of Section 85 of the Finance Act, 1994 regarding the extension of the limitation period.
- Discrepancy between the un-certified copy and the certified copy of the order.

Analysis:

1. The appeal in question was filed against the judgment and order of the appellate tribunal, which was dismissed based on the ground that the appeal was barred by limitation. The appellant sought waiver of penalties imposed under various sections of the Finance Act, 1994. The original order imposing penalties was dated 17.08.2010, and the appellant received it on 19.01.2011. The main contention revolved around the limitation period for filing an appeal against this order.

2. The crux of the issue lies in the interpretation of the proviso to Sub-Section (3) of Section 85 of the Finance Act, 1994, which allows for an extension of the limitation period under certain circumstances. The respondents argued that the limitation period of three months for filing the appeal can only be extended for a further three months if the appellant was prevented by sufficient cause from presenting the appeal within the initial three months. The appeal, in this case, was filed after six months from the date of the original order, rendering it time-barred.

3. A significant aspect of the case was the determination of when the limitation period should commence - from the date of receiving the copy of the original order or the certified copy of the order. The appellant contended that the appeal could not be filed against the un-certified copy provided by the Commissioner, as it was only for private use. They argued that the certified copy, which requires a court fee stamp for filing an appeal, is the appropriate document to initiate the appeal process.

4. The discrepancy between the un-certified copy and the certified copy of the order played a crucial role in the arguments presented. The appellant emphasized that the appeal should be based on the certified copy, as per the requirements outlined in the order dated 17.08.2010. The tribunal's findings, which suggested that the appeal could have been filed based on the original order received on 19.01.2011, were contested based on the specific instructions in the order regarding the use of the copy for private purposes.

5. In light of the above issues and arguments presented, the High Court remitted the appeal back to the tribunal for a decision on the specific issue of when the limitation period should commence. The impugned order was set aside to allow for a comprehensive evaluation of the facts and legal interpretations involved in determining the validity of the appeal. The Court refrained from making a definitive decision on whether the appeal should be based on the certified copy, leaving this aspect open for further consideration by the tribunal.