The period during which the matter is pending before the High Court can be excluded from the limitation period

[CA Bimal Jain]

The Hon’ble Supreme Court in the case of M/S MPPKVV CO LTD VERSUS GST AND CENTRAL EXCISE COMMISSIONER - 2024 (2) TMI 1135 - SC ORDER, allowed the civil appeal and held that the Appellant could have no doubt filed an appeal before the Appellate Commissioner within the period of limitation prescribed under sub-section 3A of Section 85 of the Finance Act, 1994 (“the Finance Act”). Therefore, the period during which the matter was pending before the High Court, must be excluded since the High Court specifically granted liberty to the Appellant to file an appeal before the Appellate Commissioner.

Facts:

M/s. MPPKVV Co. Ltd. (“the Appellant”) had claimed a refund of INR 3,83,67,782/- for the period of January 20, 1978 to January 07, 1991. The Assistant Commissioner rejected the refund vide Order dated December 28, 2017 and the Appellant received a copy of the Order on January 08, 2018. Hence, aggrieved by the Order the Appellant filed a writ petition before the Hon’ble High Court. The said writ petition was withdrawn with the liberty to file an appeal before the concerned Appellate Authority vide Order dated March 12, 2018. Therefore, the Appellant preferred an appeal before the Commissioner (Appeals) which was later dismissed vide Order dated April 13, 2018 on the ground that the appeal was delayed by thirty days. Hence, aggrieved by the Order dated April 13, 2018 the Appellant filed an appeal before the Customs, Excise and Service Tax Appellate Tribunal, Principal Bench, New Delhi (“the CESTAT”). The said appeal was dismissed vide Order dated January 29, 2019. Consequently, the appeal was preferred before the Hon’ble High Court of Madhya Pradesh which dismissed vide Order dated April 01, 2019 (“the Impugned Order”).

Hence, aggrieved by the Impugned Order, the present appeal was filed by the Appellant.

Issue:

Whether the period during which the matter is pending before the High Court can be excluded from the limitation period?

Held:

The Hon’ble Supreme Court in M/S MPPKVV CO LTD VERSUS GST AND CENTRAL EXCISE COMMISSIONER - 2024 (2) TMI 1135 - SC ORDER held as under:

• Noted that, the Assistant Commissioner rejected the refund on December 28, 2017 and the Appellant received the copy on January 08, 2018.
• Opined that, if the period during which the matter was pending before the High Court, i.e. March 05, 2018 to March 12, 2018, is excluded then the Appellant would have the benefit of the proviso to Sub-Section 3A of Section 85 of the Finance Act. Further, the appeal was not filed within the main provision but the proviso extends the period of limitation by one month. In the instant case, the appeal was filed on April 11, 2018 within a period of one month from March 12, 2018 on which the High Court passed an Order. In such circumstances, in the interest of justice, the delay in filing the appeal was condoned.
• Held that, the Impugned Order of the High Court, orders of the Tribunal and the Appellate Commissioner were set aside. The appeal was liable to be restored on the file of the Commissioner (Appeals), Bhopal.

Section Analysis:

Section 85 of the Finance Act talks about “Appeals to the Commissioner of Central Excise (Appeals)”. According to sub-section 3A of Section 85 of the Finance Act, an appeal shall be presented within two months from the date of receipt of the decision or order of such adjudicating authority, made on and after the Finance Bill, 2012 receives the assent of the President, relating to service tax, interest or penalty under this Chapter. Proviso to this section mentions that the Commissioner of Central Excise (Appeals) may if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of two months, allow it to be presented within a further period of one month.

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