2019 (5) TMI 1148 - HC - Service Tax

Condonation of delay in filing appeal - appeal was filed beyond the maximum time limit stipulated under the statute even after the condonable extent of delay - power to condone such delay - scope of Section 85(3A) of the Act, 1994 - scope of interference by this Court in exercise of the discretionary/extraordinary jurisdiction under Article 226 of the Constitution of India - HELD THAT - There is no dispute to the fact that the appeal came to be filed before the appellate authority only after 253 days beyond the stipulated period of 'two months' and hence, it was sought to be condoned by filing an application. The maximum condonable limit as per the statute is only 'one month', after the prescribed period of two months. This being the position, whether it could have been condoned by the statutory authority and if not possible, could it have been dealt with granting relief by this Court in exercise of the jurisdiction under Article 226 of the Constitution, is the only question. Referring to Singh Enterprises 2007 (12) TMI 11 - SUPREME COURT , it was held that the Apex Court was considering the scope and ambit of sufficient cause found in the various statutes and thereby to consider to give effect to the statutory provision made for limitation. It was further observed that the question as to whether the provisions of Section 35 of the Central Excise Act, 1944 affects the jurisdiction of the High Court under Article 226 of the Constitution of India for exercise of the constitutional power or not was not considered by the Apex Court. It is true that some of the High Courts, including this Court, at times, have considered the question with reference to the 'extraordinary circumstances', to condone the delay beyond the statutory limit as mentioned above. The learned Single Judge specifically noted that the reason for the delay of 253 days in filing the appeal offered by the writ petitioner was that after passing of the assessment order, the Appellant/Petitioner was engaged in personal tragedy as his daughter was facing marital dispute and hence, the appeal could not be filed within the time. When the Appellant contends that he was otherwise engaged in connection with the demise of his mother, even if it is acceptable, it cannot cover the inordinate delay of 253 days during which period, the Appellant did not find it necessary to compromise with the business activities and other commercial transactions. It has to be reasonably presumed that this plea under this head was never argued before the learned Single Judge; which otherwise would have found a place in the judgment, dealing with the same in appropriate manner - If the Appellant has got a case that it was argued, but omitted to be considered, the redressal of the grievance could only be by way of filing a review petition and nothing else. But since we are holding that the inordinate delay of 253 days cannot be covered by the said incidence/incident, during which period the Appellant was admittedly carrying on the commercial activities/business, it does not constitute any 'extraordinary circumstance' to have interfered by this Court, invoking the discretionary power under Article 226 of the Constitution of India. Thus, Once the period of limitation is specifically prescribed in a statute and stipulates the maximum period/extent of delay which can be condoned, it cannot be condoned by the Apex Court even in exercise of the power under Article 142 of the Constitution of India - Having said so, the Appellants cannot be heard to say that the High Court is still having power to condone the delay beyond the prescribed extent under the statute, by invoking the power under Article 226 of the Constitution, which in fact will be amounting to re-writing the law and contrary to the verdict passed by the Apex Court in Oil and Natural Gas Corporation Ltd. v. Gujarat Energy Transmission Corporation Limited Others ; 2017 (3) TMI 1628 - SUPREME COURT , which is having a binding effect all over India in view of Article 141 of the Constitution of India. Interference is declined - appeal dismissed.

Issues Involved:
1. Whether the statutory authorities and the learned Single Judge were correct in dismissing the appeals/writ petitions due to the appeal being filed beyond the maximum time limit stipulated under the statute.
2. The scope of the High Court's power under Article 226 of the Constitution to condone delays and render justice.
3. The classification and taxation of services provided by the appellants under the Finance Act, 1994.
4. The impact of extraordinary circumstances on the delay in filing the appeal.

Detailed Analysis:

1. Dismissal of Appeals Due to Delay:
The appeals arose from the dismissal of writ petitions by the learned Single Judge, who upheld the statutory authorities' decision to not entertain the appeals due to being filed beyond the maximum permissible delay. The appellants were served with a show cause notice proposing to tax their services under specific sections of the Finance Act, 1994. The appellants argued that the notice was baseless, and the services did not fall under the specified categories. However, the statutory appeal was filed 253 days late, beyond the condonable limit of one month after the prescribed two months. The Commissioner (Appeals) and the Tribunal dismissed the appeal due to the inordinate delay.

2. High Court's Power under Article 226:
The appellants contended that the High Court's power under Article 226 of the Constitution is broad enough to condone delays and render justice, even beyond the statutory limits. They cited several precedents where High Courts had condoned delays in extraordinary circumstances. The learned Single Judge, however, referred to the Supreme Court's decision in Singh Enterprises, which held that statutory limits on condonation of delay must be adhered to, and extraordinary circumstances were not substantiated by the appellants.

3. Classification and Taxation of Services:
The appellants were engaged in supplying bed-rolls and newspapers to Indian Railways and IRCTC. The authorities proposed to tax these supplies under 'outdoor catering service' and 'business support service' categories. The appellants argued that these supplies did not involve any services and did not fall under the definitions provided in the Finance Act, 1994. However, the statutory authorities and the Tribunal did not entertain the merits of the case due to the delay in filing the appeal.

4. Extraordinary Circumstances and Delay:
The appellants cited the demise of the authorized signatory's mother and the marriage of the deponent's daughter as reasons for the delay. The learned Single Judge found these reasons insufficient to constitute extraordinary circumstances that would justify condoning the delay. The appellants argued that the learned Single Judge only considered one of the two grounds (the daughter's marriage) and omitted the other (mother's demise). However, the court noted that the business activities continued during the period of delay, indicating no pressing emergency.

Conclusion:
The High Court upheld the learned Single Judge's decision, emphasizing that statutory limits on condonation of delay must be respected. The court referred to the Supreme Court's decision in Oil and Natural Gas Corporation Ltd., which held that even the Supreme Court cannot condone delays beyond statutory limits under Article 142 of the Constitution. The High Court concluded that it cannot condone the delay beyond the prescribed extent under Article 226, as it would amount to re-writing the law. Consequently, the appeals were dismissed, and the parties were ordered to bear their own costs.

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