2017 (11) TMI 836 - HC - Service Tax

Maintainability of petition - condonation of delay in filing appeal - Held that - It is true that this Court has under rare and exceptional circumstances entertained writ petitions directly against the orders of the adjudicating authorities where by virtue of the nonextendable period of limitation prescribed by the statute has expired. While doing so, the Court has always been careful of not exercising such powers in a routine manner, virtually providing for an alternative parallel forum and thereby diluting the legislative intent of not allowing appeals to be presented after indefinite period of time. Some of the self imposed restrictions recognized are that the delay should otherwise be satisfactorily explained and that the litigant would suffer gross injustice if the remedy is completely shut out. In the present case, the adjudicating authority passed the order on 08.03.2016 which would have been received by the petitioner shortly thereafter. For over one and half years, no steps were taken by the petitioner to challenge it. The present petition came to be filed on or around 11.09.2017. The delay is gross. Against the maximum period of limitation of three months, even considering additional one month upto which the Commissioner can condone the delay, the present petitioner moved its first challenge almost a year and a half later. No grounds are indicated to condone such delay - Delay, even otherwise, is gross and inordinate. Petition dismissed.

Summary

Issues:
Challenge to OrderinOriginal dated 08.03.2016 passed by Additional Commissioner of Service Tax, Ahmedabad regarding a demand of ?2.52 crores by CISF. Appeal under section 85 of the Finance Act, 1994. Exercise of writ jurisdiction under Article 226 of the Constitution to examine the legality of the order. Delay in challenging the order and condonation of delay.

Analysis:
The petition filed by CISF challenges an OrderinOriginal dated 08.03.2016 passed by the Additional Commissioner of Service Tax, Ahmedabad, confirming a demand of ?2.52 crores in service tax, interest, and penalty. The appeal against such orders falls under section 85 of the Finance Act, 1994, allowing appeals from the adjudicating authority to the appellate Commissioner. Subsection 3A of section 85 sets a time limit for filing appeals, extendable by the appellate authority up to one month on showing sufficient cause. The Commissioner has the power to condone delay up to an additional one month beyond the prescribed time limit. The statute does not permit extension of the limitation period beyond what the appellate authorities can condone.

The petitioner sought to challenge the order of the adjudicating authority through writ jurisdiction under Article 226 of the Constitution, claiming the court can examine the legality of the order. However, it is established through various Supreme Court and High Court decisions that the court cannot extend the limitation period beyond what the appellate authorities are authorized to condone. While exceptional circumstances might warrant direct writ petitions against orders, the court must be cautious not to create an alternative forum that dilutes the legislative intent of timely appeals. The Full Bench decision in a related case clarified the circumstances under which a petition under Article 226 can be entertained, emphasizing the discretionary nature of such actions based on judicial conscience and experience.

In this case, the delay in challenging the order dated 08.03.2016 was significant, with over one and a half years passing before the petition was filed around 11.09.2017. The delay of almost a year and a half far exceeded the maximum limitation period of three months, even considering the additional one month for condonation by the Commissioner. The grounds presented in the petition were general and failed to sufficiently explain the gross and inordinate delay. Consequently, the court dismissed the petition due to the unjustified delay and lack of satisfactory grounds for condonation.