9911796707
TMI Blog2014 (4) TMI 220X X X X Extracts X X X X X X X X Extracts X X X X ..... . The appeal is preferred by an assessee against the order of the Commissioner (Appeals), Customs, Central Excise, Allahabad dated 02.11.2012 rejecting the appeal on the basis of the finding that the appellate Commissioner had no discretion to condone an appeal filed beyond the period of limitation prescribed by law. 4. The relevant facts may be noticed. The Joint Commissioner, Central Excise, Allahabad by order dated 15.09.2011 confirmed service tax demand of Rs.45,77,043/- ; appropriated Rs.80,000/- already deposited and levied late fee, interest and penalties. The appellant received the adjudication order passed by the primary authority on 8.10.2011 and filed the appeal before the Appellate Commissioner on 9.4.2012. 5. There is no disp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lay if the appeal was preferred within further period of three months (qua the proviso to Section 85(3) of the Act) and on satisfactory cause being shown and that though adequate justification was not pleaded by the assessee for seeking condonation, a liberal view should be adopted and if warranted the assessee should be put on terms and the delay condoned. 8. Ld. Departmental Representative contends that there is no merit in the present appeal. According to Revenue, the appeal was preferred beyond the further period of three months as well and therefore the appellate Commissioner had no discretion to condone the delay. According to the Revenue since the primary order was received by the assessee on 8.10.2011, the normal period for preferr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... further period of three months, i.e. within the discretionary ambit of the Commissioner (Appeals). 11. Shri Govind Dixit however contends that three months period should not be considered as calendar months but must be considered as 90 days. This contention does not commend acceptance. 12. Revenue relies on the judgement of the Apex Court in Hongo India (P) Ltd. Since strenuous reliance is placed by Revenue on this judgment, we consider the judgement in Hongo India (P) Ltd. (supra), in some detail. 13. In Hongo India (P) Ltd., the provisions of Section 35H(1) of the Central Excise Act, 1944 prior to its amendment came up for consideratioin. The issue was whether a delay beyond the prescribed period could be condoned in exercise of the po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d of 180 days. 14. It is brought to our notice by Shri Dixit, Section 35 EE (2) of the Central Excise Act, 1944 provides a limitation period of 3 months for filing a revision to the Central Government and the proviso thereto enables the revisional authority to condone the delay for a further period of 3 months if sufficient cause is shown. From the narrative in the judgement set out in para-12 (extracted above),Revenue contends that period of limitation prescribed in a legislation in terms of a month should mean a period of 30 days, as a norm. 15. The contention that a period of limitation stipulated in terms of 'month' must mean '30 days' is not supported by the judgement in in Hongo India (P) Ltd. Section 3 (35) of the General Clause Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h calendar. The Supreme Court ruled that the expression ' six months' which occurs in Section 533 must be calendar months and not 180 days. 18. The judgement in Tamal Lahiri is conclusive authority for the principle that a 'month' as defined in Section 3(35) of the General Clause Act is a calendar month and not 30 days. 19. The contention urged on behalf of the Revenue by reference to paras 12 and 19 of Hongo India (P) Ltd. is therefore mis-conceived and does not commend acceptance. 20. Section 85 (3) of the Finance Act, 1994 ordains that an appeal ( to the Commissioner) shall be presented within three months from the date of receipt of a decision or order of the adjudication authority. The proviso thereto authorizes the appellate Commis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not denuded of the discretion to condone the delay but on the terms as to costs. 23. On behalf of Revenue reliance is placed on the judgements in The Office of the Chief Post Master General Vs. Living Media India Ltd. - 2012 (277) ELT 289 (SC); Raj Chemicals Vs. Union of India - 2013 (287) ELT 145 (Bombay) and on the judgement of the Karnataka High Court in Phoenix Plasts Company reported in 2013 (298) ELT 481 (Karnataka), for the proposition that no one has an inherent right to seek codonation of delay and an application for condonation should plead satisfactory cause for the delay. There can be no quarrel with this established principle. The general thread running through several precedents is that one application for condonation of dela ..... X X X X Extracts X X X X X X X X Extracts X X X X
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