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TMI Blog2014 (11) TMI 388X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeal has been unexplained and in the absence of any express provisions, can the condonation of delay in filing appeal before Commissioner (Appeals) be allowed by Hon'ble CESTAT? 2. Whether, Hon'ble CESTAT was justified in condoning the delay in filing the appeal before the Commissioner (Appeals), beyond statutory period of six month, including condonable period, by imposing a cost, in disregard of the observations made by the Hon'ble Apex Court? 3. Whether, Hon'ble CESTAT can itself condone the delay in filing the appeal before Commissioner (Appeals) and direct to decide the case on merit?" The facts in the present case fall within a narrow compass. An order of adjudication was made by the Joint Commissioner (Adjudicatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the delay should be condoned subject to the payment of interest quantified to Rs. 25,000/-. The first issue, which has arisen in the appeal, relates to the construction of the provisions of Section 85 of the Act of 1994. Section 85 reads as under; "Appeals to the Commissioner of Central Excise (Appeals). 85. [(1) Any person aggrieved by any decision or order passed by an adjudicating authority subordinate to the Commissioner of Central Excise may appeal to the Commissioner of Central Excise (Appeals).] (2) Every appeal shall be in the prescribed form and shall be verified in the prescribed manner. (3) An appeal shall be presented within three months from the date of receipt of the decision or order of [such adjudicating authority], re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the appeals and making order under this section, the Commissioner of Central Excise (Appeals) shall exercise the same powers and follow the same procedure as he exercises and follows in hearing the appeals and making orders under the Central Excise Act, 1944 (1 of 1944)." Under sub-section (3) of Section 85, a period of three months is the limitation for filing an appeal against an order of adjudication, and the limitation commences to run from the date of receipt of the decision or order of the adjudicating authority relating to service tax, interest or penalty made before the date on which the Finance Bill 2012 receives the assent of the President. In the present case, the order of adjudication was made on 15 September 2011. Under the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n does not suffer from any ambiguity. In construing fiscal legislation, the duty of the Court is to interpret the statute and the language used by the legislature by giving to it a plain and natural meaning. Significantly, where the legislature intends to define the period of limitation with regard to the number of days, it does so specifically. In the case of the Act of 1994, Section 85 has defined the period of limitation as well as the power to condone the delay with regard to a stipulation in terms of months and such a stipulation can only mean a calendar month. Once the legislature has used the expression "three months" both in the substantive part of sub-section (3) of Section 85 as well as in its proviso, it would not be open for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ression 'six months' which occurs in S. 533 of the Act must accordingly be construed to mean six calendar months and not 180 days. The offence, being alleged to have been committed on the expiry of December 20, 1967, and the prosecution having been instituted on June 19, 1968, the provisions of S. 533 must be held to have been duly complied with." In the present case, the order of adjudication, it is admitted, was received by the assessee on 8 October 2011. The period of three months would come to an end on 8 January 2012. If sufficient cause was shown, the Commissioner (Appeals) had the jurisdiction to condone a delay of not more than a further period of three months which would expire on 8 April 2012. Admittedly 7 and 8 April 201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce from Mumbai which led to the delay, an order of costs would serve the ends of justice. The Tribunal has taken an overall view in the interest of justice. The issue is as to whether the High Court in the exercise of its appellate jurisdiction can interfere in the exercise of its discretion. Once it is held that the Tribunal did, indeed, have a discretionary jurisdiction, as a first appellate body against the order of the Commissioner (Appeals), this Court would be slow to interfere, particularly having regard to the ambit of the jurisdiction of the Tribunal under Section 86(1) of the Act of 1994. The High Court, in this view of the matter, ought not to substitute its own view in the exercise of discretion where the discretion which has b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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