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TMI Blog2019 (7) TMI 504X X X X Extracts X X X X X X X X Extracts X X X X ..... visions of Section 5 of the Act. Language used in the section makes the position clear that the legislature intended the appellate authority to entertain the appeal by condoning delay only up to 30 days after expiry of 60 days which is normal period for preferring the appeal. Thus the prescribed time limit of three months under the provisions of Section 85 of the Finance Act cannot be extended by importing the provisions of Section 5 of Limitation Act. Appeal allowed - decided in favor of Revenue. - Service Tax Condonation of Delay Application No. ST/COD/51300-51301/2018 and Service Tax Appeal No. 53900-53901 of 2018-DB - Final Order No.50876-50877/2019 - Dated:- 10-7-2019 - MR. ANIL CHOUDHARY, MEMBER (JUDICIAL) AND MR. BIJAY KUMAR, MEMBER (TECHNICAL) Shri Sanjay Tiwari, CA - for the appellant Shri Dhruv Tiwari, Advocate Shri Sanjay Jain, DR - for the respondent ORDER These two appeals have been filed by the appellants against the order-in-appeal dated 1.3.2016 and 28.8.2017 along with COD applications. 2. The appellants have filed the appeals before this Tribunal beyond the prescribed time ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovisions of Section 5 of Limitation Act, 1963 is applicable to Section 19 of Madhya Pradesh Madhyastha Adhikaran Adhiniyam, 1983. No express exclusion has been incorporated therein and there is neither any evidence to suggest that legislative intend was to bar application of Section 5 of Limitation Act. The case which were relied upon to dismiss Special Leave Petition in Nasiruddin Ors. is distinguishable and has no bearing on the fact of the case. It was emphasised by learned Advocate that although specific time period has been prescribed for filing the appeal under Section 85 of the Finance Act, 1994 (for short, Finance Act) but there is no exclusion of the provisions of Section 3 to 24 of Limitation Act, 1963 in Finance Act. Hon ble Court will be entitled to apply Section 5 of Limitation Act and condone the delay in case of filing appeal beyond the statutory prescribed limit in the Finance Act. 4. Learned Authorised Representative on behalf of the Revenue submits that the appellants have filed the appeal before the Tribunal after the lapse of prescribed statutory period under Section 85 of the Finance Act, which is within three months of passing of the order appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Schedule, the provisions of section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in sections 4 to 24 (inclusive) shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law. 5.2 It is submitted by learned Advocate that in case of Anshuman Shukla (supra), the Hon ble Supreme Court constituted a Special Bench to decide as to how to read the exclusion of Rule 4 to 24 (both inclusive) of Limitation Act and also mandatory requirement which needs to be followed, while applying Section 29(2) of Limitation Act. It was held by the Hon ble Supreme Court that mere providing the prescribed time limit would not be sufficient to exclude the applicability of Section 4 to 24 of Limitation Act in respect of local/or special law and in case where there is intention to exclude these sections there must be an express rider to that effect. He, therefore, submits that the aforesaid ratio laid down in case of Anshuman Shukla (supra) is to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Representative also submitted that the decision of Anshuman Shukla (supra) has been decided while dealing with the issue as to whether Hon ble High Court should have condoned the delay in filing revision petition under Madhya Pradesh Madhyastha Adhikaran Adhiniyam (MP Arbitration Act, 1983). In this case, the MP Government, while disagreeing with the decision of Arbitration Tribunal filed a petition for revision under Section 19 of the Act of 1983 along with the application under Section 5 of the Limitation Act, 1963 to condone the delay for filing revision petition, which was dismissed by the High Court. In view of provisions of Section 29(2) of Limitation Act supra, it was held that the Section 19 of the Act of 1983 does contain any express rider restraining power of High Court to entertain appeal for revision, after expiry of prescribed period. On the contrary, the High Court has been conferred with a suo moto power for the review of award any time under Act, 1983. Thus, Hon ble Supreme Court was concerned with the interpretation of Section 19 of the Act of 1983, which gave them suo moto power for revision any time. Thus, it was held in that case there is no legislative intent t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Finance Act is also not to be curtailed by Hon ble High Court, while exercising writ jurisdiction, placing reliance on the case of Director, Post Graduate Institute of Medical Education And Research 2018 (16) GSTL 513 (P H). The relevant paragraph of the said judgment, which is para 7, is as under : 7 . The issue with regard to the condonation of delay beyond the period specified in the statute in filing appeal has already been decided by a Full Bench of this Court in State of Haryana v. Hindustan Machine Tools Ltd. - 2014 (4) RCR (Civil) 1040 = 2015 (328) E.L.T. 27 (P H), wherein it was held that wherever the extent of condonable period is specifically prescribed by a statute, it would not be appropriate even under Articles 226/227 of the Constitution of India to entertain the writ petition so as to breach the express provision in the statute and act contrary to the mandate of the legislature. It was further recorded that it is for the legislature to prescribe the limits or not to do so for condoning the delay and exercise of extraordinary writ jurisdiction under Articles 226/227 of the Constitution of India would amount to doing violence to the statutory ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tu cognisance of the award under the Act of 1983, the Hon ble High Court erred in rejecting the appeal being time-barred. The Act of 1983 is special law which is different from the Finance Act, which has got the applications of certain Sections of Central Excise Act, 1944, by virtue of the provisions of Section 83 thereof. Section 83 of the Finance Act is reproduced as under: Application of certain provisions of Act 1 of 1944. 83 . The provisions of the following sections of the Central Excise Act, 1944 (1 of 1944), as in force from time to time, shall apply, so far as may be, in relation to service tax as they apply in relation to a duty of excise:- 9 [ 13 [sub-section (2A) of section 5A, sub-section (2) of section 9A], 9AA, 9B, 9C, 9D, 9E, 11B, 11BB, 11C, 12, 12A, 12B, 12C, 12D, 11 [12E, 14, 14 [15, 15A, 15B], 31, 32, 32A to 32P (both inclusive), 33A, 34A, 35EE, 35F],] 8 [35FF] to 35-O (both inclusive), 35Q, 10 [35R,] 36, 36A, 36B, 37A, 37B, 37C, 37D, 7 [38A] and 40. 10. The Hon ble Supreme Court in the case of Hongo India Pvt. Ltd. (supra) has in a specific and clear term dealt with the application of Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with notice of an order under section 35C passed before the 1st day of July, 2003 (not being an order relating, among other things, to the determination of any question having a relation to the rate of duty of excise or to the value of goods for purposes of assessment), by application in the prescribed form, accompanied, where the application is made by the other party, by a fee of two hundred rupees, apply to the High Court to direct the Appellate Tribunal to refer to the High Court any question of law arising from such order of the Tribunal. Except providing a period of 180 days for filing reference application to the High Court, there is no other clause for condoning the delay if reference is made beyond the said prescribed period. We have already pointed out that in the case of appeal to the Commissioner, Section 35 provides 60 days time and in addition to the same, Commissioner has power to condone the delay up to 30 days, if sufficient cause is shown. Likewise, Section 35B provides 90 days time for filing appeal to the Appellate Tribunal and sub-section (5) therein enables the Appellate Tribunal to condone the delay irrespective of the number of days, if suffici ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... osition clear that the legislature intended the appellate authority to entertain the appeal by condoning the delay only up to 30 days after expiry of 60 days which is the preliminary limitation period for preferring an appeal. In the absence of any clause condoning the delay by showing sufficient cause after the prescribed period, there is complete exclusion of Section 5 of the Limitation Act. The High Court was, therefore, justified in holding that there was no power to condone the delay after expiry of the prescribed period of 180 days. Even otherwise, for filing an appeal to the Commissioner, and to the Appellate Tribunal as well as revision to the Central Government, the legislature has provided 60 days and 90 days respectively, on the other hand, for filing an appeal and reference to the High Court larger period of 180 days has been provided with to enable the Commissioner and the other party to avail the same. We are of the view that the legislature provided sufficient time, namely, 180 days for filing reference to the High Court which is more than the period prescribed for an appeal and revision. 21 . In the light of the above discussion, we hold that the H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iod for preferring appeal. Therefore, there is complete exclusion of Section 5 of the Limitation Act. The Commissioner and the High Court were therefore justified in holding that there was no power to condone the delay after the expiry of 30 days period. Language used in the section makes the position clear that the legislature intended the appellate authority to entertain the appeal by condoning delay only up to 30 days after expiry of 60 days which is normal period for preferring the appeal. We also find that in the case of Director, PGIMER (supra), it has been held in para 7, 8 and 9 which is as under : 7 . The issue with regard to the condonation of delay beyond the period specified in the statute in filing appeal has already been decided by a Full Bench of this Court in State of Haryana v. Hindustan Machine Tools Ltd. - 2014 (4) RCR (Civil) 1040 = 2015 (328) E.L.T. 27 (P H), wherein it was held that wherever the extent of condonable period is specifically prescribed by a statute, it would not be appropriate even under Articles 226/227 of the Constitution of India to entertain the writ petition so as to breach the express provision in the statute ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Court while interpreting the period of limitation prescribed in the Special Act, as present one, held that same cannot be altered and even under the provisions of Article 226 and 227 of Constitution of India, not beyond the period prescribed/time period. Therefore for all the above reasons the prescribed time limit of three months under the provisions of Section 85 of the Finance Act cannot be extended by importing the provisions of Section 5 of Limitation Act. We respectfully hold that ratio laid down in case of Anshuman Shukla, cannot thus be made applicable in case of Finance Act, 1994. 12. Accordingly, we do not find any infirmity in the order dated 28.8.2017 in Appeal No. 53900 of 2018 and the same is required to be sustained in the appeal. 13. In regard to Appeal No. 53901 of 2018 (order dated 1.3.2016), it is seen that the appeal has been preferred against order-in-original dated 10.6.2014 on 7.8.2014, which is within the prescribed time limit of two months. This Tribunal vide order dated 5.12.2018 has waived the requirement of pre-deposit for filing of appeals. Therefore, we proceed to decide the appeal on merits of the case. The issue involved i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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