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2021 (3) TMI 542 - HC - Service TaxCondonation of delay in filing appeal before Commissioner (Appeals) - Scope of the term 'Month' - Short payment of service tax - non-inclusion of amount of TDS and the amount of R D cess in payment of royalty - period from April, 2016 to March, 2017 - appeal filed beyond the period of one month after the normal period of limitation of two months - extended period of limitation - HELD THAT - A careful analysis of sub-section (3A) of section 85 would go to show that the appeal has to be presented within two months from the date of receipt of the decision or order of the adjudicating authority. However, the said limitation period of two months can be extended for a further period of one month if the appellate authority is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of two months - presentation of appeal has to be within two months from the date of receipt of the order or decision appealed against. Therefore, the date of receipt of the order or decision appealed against becomes very relevant. Limitation period of two months can be extended for a further period of one month if the appellate authority is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the limitation period of two months. While there is no dispute to the proposition that section 5 of the Limitation Act, 1963 would stand excluded when the statute itself provides the limitation period for filing of appeal as well as the period beyond the limitation period within which the delay in filing the appeal can be condoned. But the observation of respondent No.1 that the provisions of section 85 of the Finance Act, 1994 and section 35 of the Central Excise Act, 1944 are pari-materia may not be correct - From a comparison of section 35 of the Central Excise Act, 1944 and section 85(3A) of the Finance Act, 1994, as amended, we have already noticed the subtle difference in language in the two provisions which may have a considerable significance in the facts of the present case. While under section 35 the period of limitation is 60 days plus 30 days that is at the most 90 days, under sub-section (3A) of section 85, the period of limitation is two months plus one month i.e., total three months at the maximum. While construing the word 'month', it would mean a month as reckoned according to the British calendar, number of days in a month being immaterial. Therefore, the two months' limitation period was available to the petitioner upto 31.10.2019. If we add the extended period of limitation of further one month, it would mean that delay could be condoned till 31.11.2019 because the total period of three months had commenced from 31.08.2019 and would be available till 31.11.2019 but because there is no 31 days in November, the extended period of limitation would spill over to 01.12.2019. This is more so because the word to is not used in section 85(3A) to cap the limitation period on 30.11.2019. Therefore, the appeal was required to have been dispatched by 01.12.2019. But it was dispatched on 02.12.2019 - it is found that 01.12.2019 was a Sunday. Therefore, benefit of this public holiday would be available to the petitioner in terms of section 10 of the General Clauses Act. Accordingly, the appeal presented on 02.12.2019 would be construed to be within the extended period of limitation, 01.12.2019 being a public holiday. Whether the benefit of the extended period of limitation of one month is to be granted to the petitioner or not is however within the discretion of respondent No.1. The dispatch of the appeal by the petitioner on 02.12.2019 was within the extended period of limitation of one month and, therefore, without considering the prayer for condonation of delay of the petitioner, respondent No.1 ought not to have rejected the appeal as being time barred by taking the ground that he had no jurisdiction to condone the delay beyond the extended limitation period of one month - matter remanded back to respondent No.1 to consider afresh the application of the petitioner for condonation of delay in filing the related appeal. Appeal allowed by way of remand.
Issues Involved:
1. Quashing of the order dated 27.02.2020. 2. Direction to respondent No.1 to decide the appeal on merits. 3. Condonation of delay in filing the appeal. 4. Jurisdiction of the appellate authority to condone delay. Detailed Analysis: Quashing of the Order Dated 27.02.2020: The petitioner sought the quashing of the order dated 27.02.2020, which rejected the application for condonation of delay in filing the appeal and dismissed the appeal as time-barred. The High Court observed that the appellate authority (respondent No.1) had rejected the appeal on the ground that it was filed beyond the extended period of limitation and that the authority had no power to condone the delay beyond the statutory limit. Direction to Respondent No.1 to Decide the Appeal on Merits: The petitioner also sought a direction to respondent No.1 to decide the appeal on its merits. The High Court, after analyzing the facts and legal provisions, found that the appeal was dispatched within the permissible extended period of limitation, considering the application of Section 10 of the General Clauses Act. Therefore, the court held that respondent No.1 should have considered the appeal on its merits instead of dismissing it as time-barred. Condonation of Delay in Filing the Appeal: The High Court examined the provisions of Section 85(3A) of the Finance Act, 1994, which allows an appeal to be presented within two months from the date of receipt of the order, extendable by one month if sufficient cause is shown. The court noted that the petitioner received the order on 30.08.2019, and excluding this date, the two-month period ended on 31.10.2019. The extended period of one month ended on 01.12.2019, which was a Sunday. Therefore, the dispatch of the appeal on 02.12.2019 was within the extended period of limitation, as per Section 10 of the General Clauses Act. Jurisdiction of the Appellate Authority to Condon Delay: The High Court clarified that while the appellate authority (respondent No.1) does not have the jurisdiction to condone delay beyond the statutory limit, in this case, the appeal was dispatched within the extended period of limitation. The court emphasized that the date of dispatch should be considered as the date of filing the appeal, and not the date of receipt by the appellate authority. The court referred to various judicial pronouncements supporting this interpretation. Conclusion: The High Court set aside the order dated 27.02.2020 passed by respondent No.1 and remanded the matter back to respondent No.1 to consider afresh the application for condonation of delay in filing the appeal. The court allowed the writ petition to the extent of directing respondent No.1 to decide the appeal on merits, emphasizing that the appeal was filed within the extended period of limitation. The court did not order costs.
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