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2017 (10) TMI 616 - AT - Service TaxTime limitation for filing of an appeal - the Hon ble Punjab and Haryana High Court have disposed off the writ petition filed by the appellant on 19.02.2015 and thereafter within 26 days, the appellant filed the appeal before the ld. Commissioner (A) - Held that - provisions of Section 35 of the Central Excise Act, 1944 are to be read in a manner with the limitation for filing the appeal shall start from 19.02.2015 as held by this Tribunal in the case of M/s Mehul Jhaveri 2013 (9) TMI 139 - CESTAT MUMBAI , where it was held that the time taken by the appellant in litigation before the Hon ble Bombay High Court was excluded then the appeal filed before the Commissioner (Appeals) was within the time. The appellant has filed the appeal before the Ld. Commissioner (A) within 26 days after the disposal of their writ petition by the Hon ble High court of Punjab and Haryana - the appellant has filed the appeal before the Ld. Commissioner (A) within time - the matter is remanded back to the Ld. Commissioner (A) to decide the issue on merits - appeal allowed by way of remand.
Issues:
- Appeal against dismissal of appeal as time-barred - Interpretation of Section 35 of Central Excise Act, 1944 - Application of judicial precedents on exclusion of time for limitation purposes Analysis: 1. The appellant filed an appeal against the dismissal of their appeal as time-barred by the Ld. Commissioner (A). The dispute arose from a show cause notice demanding service tax for constructing an Agro Mall for a statutory authority. The appellant argued that no service tax was payable to a statutory authority. The original order demanding service tax was received by the appellant on 03.02.2014, and the appeal was filed before the Ld. Commissioner (A) on 29.03.2015, beyond the stipulated 60-day period under Section 35 of the Central Excise Act, 1944, extendable by 30 days for satisfactory reasons for delay. 2. The Tribunal considered the events and facts of the case, noting that the Hon'ble Punjab and Haryana High Court disposed of the writ petition on 19.02.2015, following which the appellant filed the appeal before the Ld. Commissioner (A) within 26 days. Citing the case of M/s Mehul Jhaveri, the Tribunal emphasized that the limitation for filing the appeal should start from the date the High Court disposed of the writ petition. The Tribunal also analyzed the case law of M/s. Vijay Brothers, highlighting the exclusion of time spent in litigation before the High Court for calculating the period of limitation for filing an appeal. 3. By applying the principles established in the mentioned cases, the Tribunal concluded that the time taken by the appellant in litigation before the High Court should be excluded for calculating the time for filing the appeal before the Ld. Commissioner (A). As the appeal was filed within the extended period after the disposal of the writ petition, the Tribunal set aside the impugned order and remanded the matter back to the Ld. Commissioner (A) to consider the issue on merits and pass an appropriate order after giving the appellant a reasonable opportunity to present their case. 4. Ultimately, the Tribunal held that the appellant filed the appeal within the stipulated time, thereby setting aside the impugned order. The matter was remanded back to the Ld. Commissioner (A) for a decision on the merits based on various judicial pronouncements. The appeal was disposed of through remand, ensuring a fair consideration of the issue involved.
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