FILING APPEAL AS PER THE DIRECTIONS OF HIGH COURT

[Mr. M. GOVINDARAJAN]

In any litigation appeal can be filed before the Appellate Authority challenging the impugned order.  The appeal shall be filed within the period prescribed for filing appeal.  The law may allow to condone the delay in filing appeal if the Appellate Authority is satisfied that the appellant could not file the appeal for the reasons beyond his control.  Otherwise, the appeal may be rejected on time bar. 

In many a case, for example in GST matters, without filing the appeal before the Appellate Authority writ petition may be filed before the High Court.  The respondent may raise a issue that the writ petition is not maintainable on the reason that there is an alternative remedy available to the petitioner.  The High Court may allow the writ petition, which is availed without availing the alternate remedy of filing appeal, if there is gross violation of principles of Natural Justice, jurisdictional error etc.  In such cases the High Court, while dismissing the appeal may direct the petitioner to file appeal before the Appellate Authority within the time prescribed by the High Court.

The petitioner may file appeal before the Appellate Authority as per the directions of the High Court.  There may be a confusion as to whether which date is to be taken for counting limitation period to file appeal before the Appellate Authority.

In MICRO CARBONATES (P) LTD, REPRESENTED BY DIRECTOR NEERAJ MITTAL VERSUS COMMISSIONER OF CUSTOMS (APPEALS) , ASSISTANT COMMISSIONER OF CUSTOM (REFUNDS) , CUSTOMS EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, CHENNAI - 2023 (11) TMI 975 - MADRAS HIGH COURT the High Court held that the date of receipt of the order by the petitioner has to be taken as the starting of limitation period to file an appeal.

In the above said case, the petitioner filed a Writ Appeal before the Madras High Court.  The High Court, vide their order dated 26.03.2023 in writ appeal No. 426 of 2013, held that the impugned order, dated is appealable.  Therefore, the High Court did not entertain the writ appeal.  However, the High Court held that the petitioner may file appeal before the appellate authority from two weeks from the date of order (i.e., 26.03.2023).  The Appellate Authority shall consider the said appeal and pass orders on merits and in accordance with the law, within three months from the date of filing appeal.

As per the directions of the High Court the petitioner filed appeal before the Appellate Authority on 29.04.2023.  The Appellate Authority dismissed the appeal on the ground of limitation.  The petitioner, being aggrieved against this order filed the present writ petition before the High Court.

The petitioner submitted the following before the High Court-

• The Appellate Authority had construed that the appeal should have been filed by the petitioner within a period of two weeks from 26.3.2023 i.e., the date on which the order was passed and dismissed the appeal as time barred.
• The order was passed on 26.03.2023.  The petitioner obtained the certified copy of the order on 25.04.2023.
• The petitioner filed the appeal on 29.04.2023 i.e., within four days from the date of receipt of the order.
• While taking two weeks’ time mandated by the High Court into consideration the word ‘today’ mentioned in the order should have been construed as ‘the date of issuance of the order copy’ and not the date of passing of the order.
• The appeal has been filed within the time limit as mandated by the High Court.

Therefore, the petitioner prayed the High Court to set aside the impugned order.

• In the order passed by the High Court it has been mentioned that the appeal should be filed by the appellant within a period of two weeks from today i.e., 26.03.2023, the date of passing of the order.
• Since the petitioner has filed the appeal on 29.04.2023 the Appellate Authority has dismissed the appeal as time barred.

The High Court considered the submissions by both the parties.  The main issued to be decided by the High Court is as to whether the word today mentioned in the order passed by the Division Bench of the High Court refers to ‘the date on which the order was passed or to the date on which order was issued to the petitioner’ i.e., the date on which the order was made ready.

The High Court was of the view that the petitioner could be able to file the appeal only when the order copy was received by him or the Appellate Authority would not entertain the appeal without the order copy.  Therefore, the High Court considered that for all purposes the word today has to be construed as the date on which the order was ready to issue.  Therefore, the word today mentioned in the order refers to the date on which the order copy was issued to the petitioner.  In the present case the order was received by the petitioner on 25.04.2023.  The appeal was filed within 4 days from the date of receipt of the order before the Appellate Authority.  Therefore, there was no delay in filing the appeal. The appeal was filed within the period of limitation prescribed by the Division Bench of Madras High Court.  Therefore, the High Court set aside the impugned order of the Appellate Authority on the ground of the limitation. 

The High Court remitted the matter back to the Appellate Authority with directions to reconsider the decide the appeal in accordance with the law.