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2019 (7) TMI 504 - AT - Service TaxCondonation of delay in filing appeal - appeal filed before this Tribunal beyond the prescribed time limit of three months for filing the appeal against the impugned order - delay of 310 days and 890 days in filing of these appeals, although there has been a substantial delay in filing the appeal beyond the prescribed period as per the Finance Act - whether the Commissioner (Appeals) is empowered to condone the delay in filing appeal before him under the provisions of Section 85 of Finance Act or not? - HELD THAT - The Hon ble Supreme Court in the case of Hongo India Pvt. Ltd. 2009 (3) TMI 31 - SUPREME COURT has in a specific and clear term dealt with the application of Section 5 of Limitation Act under the provisions of Central Excise Act which is also applicable in case of Finance Act by virtue in Section 83 of thereof - The decision of Hongo India (P) Ltd. has been specific to the Central Excise Act wherein it is held that that legislative intend by giving liberal interpretation, limitation cannot be extended by invoking the provisions of Section 5 of the Act. Language used in the section makes the position clear that the legislature intended the appellate authority to entertain the appeal by condoning delay only up to 30 days after expiry of 60 days which is normal period for preferring the appeal. Thus the prescribed time limit of three months under the provisions of Section 85 of the Finance Act cannot be extended by importing the provisions of Section 5 of Limitation Act. Appeal allowed - decided in favor of Revenue.
Issues Involved
1. Delay in filing appeals beyond the prescribed time limit. 2. Applicability of Section 5 of the Limitation Act, 1963 to condone the delay in filing appeals under Section 85 of the Finance Act, 1994. 3. Merits of the case regarding service tax liability on the police department for providing security services. Detailed Analysis 1. Delay in Filing Appeals Beyond the Prescribed Time Limit The appellants filed appeals with delays of 310 days and 890 days, respectively, beyond the prescribed three-month period. The appellants argued that the delay was due to the need for permissions from various offices, including Police Headquarters, and cited decisions from higher courts to support their request for condonation of delay. The Tribunal acknowledged the substantial delay but condoned it, citing the decisions in "Land Acquisition Anantnag" and "Jyotsana Sarda" to ensure justice. 2. Applicability of Section 5 of the Limitation Act, 1963 The appellants argued that Section 5 of the Limitation Act should apply to the Finance Act, 1994, as there is no specific exclusion of Sections 4 to 24 of the Limitation Act. They relied on the Supreme Court's decision in "Anshuman Shukla," asserting that the absence of an express exclusion allows for the condonation of delay. The Revenue countered that the Finance Act explicitly prescribes a three-month period for filing appeals, extendable by one month, and does not allow for further condonation. They cited multiple case laws, including "Hongo India Pvt. Ltd." and "Singh Enterprises," which held that the legislative intent was to exclude the applicability of Section 5 of the Limitation Act for appeals under the Finance Act. The Tribunal concluded that the specific time limit under Section 85 of the Finance Act cannot be extended by importing Section 5 of the Limitation Act. The decision in "Anshuman Shukla" was not applicable to the Finance Act, 1994. 3. Merits of the Case Regarding Service Tax Liability For Appeal No. 53901/2018, the Tribunal considered the merits of the case, which involved the service tax liability of the police department for providing security services. The Tribunal referred to a previous decision in "Superintendent of Police Vs Commissioner of Central Excise and Service Tax, Jaipur-I," which concluded that the police department, as a state agency, is not engaged in the business of running security services and thus not liable for service tax. The Tribunal found no reason to sustain the impugned order against the police department and set it aside, following the precedent that fees collected by the police are for performing statutory functions and deposited into the government treasury. Conclusion - Appeal No. 53900/2018: Rejected along with the application for condonation of delay. - Appeal No. 53901/2018: Allowed, setting aside the impugned order, with the application for condonation of delay granted. (Pronounced in open Court on 10.07.2019)
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