SERVICE TAX – RELEVANCE OF GENERAL CLAUSES ACT VIS. A. VIS BRITISH CALENDER

[Rishi Chanan]

In the very recent decision vide The Ahmednagar Merchants Co-Op Bank Ltd Versus Commissioner Of Central Excise & Customs, Aurangabad [2014 (9) TMI 65 - CESTAT MUMBAI] the Hon’ble CESTAT, Mumbai has interpreted the relevance of definition of British Calender Month as per The General Clauses Act under service tax law. The brief facts of the case were as follows:

Facts: “The lower appellate authority has dismissed the appeal of the appellant as time-barred on the ground that the appeal was filed on 17/02/2014 in respect of an adjudication order received on 18/11/2013 and, therefore, the appeal has been filed after the expiry of 91 days from the date of communication of the order”

In their application for condonation of delay, the appellant has pleaded that they were awaiting for decision on the same issue in respect of other Branches, and, therefore, the delay occurred.

Question: Whether the appeal has been filed in time or not? As per Section 85 (3A) of the Finance At, 1994, or not?

Decision: The Hon’ble CESTAT has held that since the appellant received order on 18/11/2013, the period of two months for filing the appeal expired on 18/01/2014 and the condonable grace period expired on 18/02/2014. The reason adduced by the appellant cannot be said to be unsatisfactory. The appeal was filed on 17/02/2014 and the General Clauses Act defines a month as a British Calendar month, it is not defined in terms of number of days. Therefore, the appeal has been filed in time i.e. within the condonable period. Therefore, the period is not beyond the condonable period and the appellate authority should have condoned the delay. Inasmuch as the appellant authority has not considered the appeal on merits, in the interest of justice, the matter is remanded back to the appellate authority for decision on merits. Needless to say the appellant should be heard before passing the denovo order.

Conclusion: As per this decision, the one month theory will be changed and it is hoped should not be interpretated in number of days.

Regards,

Rishi Chanan, Advocate

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