2021 (3) TMI 88 - HC - Service Tax

Maintainability of appeal - appeal was rejected as being time-barred - section 85(3A) of the Finance Act, 1994 - HELD THAT - An appeal relating to service tax, interest or penalty is required to be presented within two months from the date of receipt of the decision or order of the adjudicating authority if the decision or order has been made after the Finance Bill, 2012 had received the assent of the President. There is no dispute that the order in original dated 03.09.2019 had been passed after receipt of the assent of the President to the Finance Bill, 2012. However, as per the proviso, the appellate authority may allow the appeal to be presented beyond the limitation period of two months within a further period of one month if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the stipulated period of two months. On a careful reading of the aforesaid provision what is discernible is that an appeal is required to be filed within two months from the date of receipt of the decision or order which period can be extended for a further period of one month on sufficient cause being shown. Thus, in any event an appeal has to be filed within a maximum period of three months - The appeal was required to be filed within two months from 07.09.2019 i.e. within 07.11.2019. If we add one more month to this to bring in the additional period of limitation, then the outer date for fling the appeal would be 07.12.2019. In the instant case petitioner filed the appeal on 17.07.2020 way beyond 07.12.2019; thus accompanied by an application for condonation of delay of 253 days - Referring to the provisions of sub-section (3A) of section 85 of the Finance Act, 1994 respondent No.3 held that he has no power or there is no provision for condonation of delay beyond the additional one month. It is trite that when the statute prescribes a period of limitation alongwith the period for extending the period of limitation, provision of section 5 of the Indian Limitation Act, 1963 would not be applicable - In the instant case, what is under impugnment is the order of respondent No.3 rejecting the appeal of the petitioner as being time barred. There are no error or infirmity in the view taken by respondent No.3. In such circumstances, we do not think that the present is a fit case where we should exercise our extra ordinary jurisdiction under Article 226 of the Constitution of India to interfere with the impugned order passed by respondent No.3 - petition dismissed.

Summary

Issues:
Petitioner seeks quashing of order rejecting appeal as time-barred and direction for hearing on merit.

Analysis:
- The petitioner, a cooperative bank, was registered under the Finance Act, 1994.
- An order confirming service tax demand was passed on 03.09.2019.
- Petitioner's appeal was dismissed as time-barred by respondent No.3 on 14.08.2020.
- The appeal was required to be filed within two months from the receipt of the order.
- The outer date for filing the appeal was 07.12.2019, but petitioner filed it on 17.07.2020.
- The delay was 253 days, beyond the additional one month allowed for condonation.
- Respondent No.3 cited the law and held that there is no provision for condonation beyond one month.
- The Apex Court precedent also supported the view that the appellate authority cannot allow appeals beyond the prescribed time limit.
- The order of respondent No.3 was challenged in the writ petition under Article 226 of the Constitution of India.
- The High Court found no error in the decision of respondent No.3 and declined to interfere with it.
- The writ petition was dismissed, and no costs were awarded.

This judgment clarifies the statutory provisions regarding the filing of appeals in matters related to service tax, interest, or penalty under the Finance Act, 1994. It emphasizes the importance of adhering to the prescribed timelines for filing appeals and the limitations on condonation of delays beyond the specified period. The High Court upheld the decision of respondent No.3, highlighting the absence of grounds to intervene through extraordinary jurisdiction under Article 226. The ruling underscores the significance of complying with statutory timelines and the limited scope for condonation of delays in appeal filings.