Custom, Excise & Service Tax Tribunal
New India Transport Corporation vs Cgst Kanpur on 8 May, 2025
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
ALLAHABAD
REGIONAL BENCH - COURT NO.II
Service Tax Appeal No.70229 of 2024
(Arising out of Order-In-Appeal No.711/ST/Alld/2023 dated 31/01/2023
passed by Commissioner (Appeals) CGST & Central Excise, Allahabad)
M/s New India Transport Corporation, .....Appellant
(Laxmipura, Lalitpur-288403 UP)
VERSUS
Commissioner, CGST, Kanpur ....Respondent
(117/7, Sarvodya Nagar, Kanpur-208005 U.P.)
APPEARANCE:
Mrs. Stuti Saggi, Advocate for the Appellant
Mrs. Chitra Srivastava, Authorised Representative for the Respondent
CORAM: HON'BLE MR. SANJIV SRIVASTAVA, MEMBER (TECHNICAL)
FINAL ORDER NO.70321/2025
DATE OF HEARING : 08.05.2025
DATE OF DECISION : 08.05.2025
SANJIV SRIVASTAVA:
This Appeal is directed against the Order-In-Appeal
No.711/ST/Alld/2023 dated 31/01/2023 passed by
Commissioner (Appeals) CGST & Central Excise, Allahabad. By
the impugned order following has been held:-
"The prescribed time limit to file the appeal is specified as
two months under Section 85(3A) of the Act, and therefore,
the present appeal filed by the appellant is beyond the time
limit specified under flection 85(3A) of the Act in as inuch as
they have received the impugned Order on 31.07.2022 and
filed the present appeal on 03.11.2022 1.c., after a lapse of
more than three months and beyond the time limit specified
under Section 85(3A) of the Act, which provides as under:
Section 85(3A): An appeal shall be presented within two
months from the date of receipt of the decision or order of
2 Service Tax Appeal No.70229 of 2024
such adjudicating authority, made on and after the Finance
Bill, 2012 receives the assent of the President, relating to
service tax, interest or penalty under this Chapter: Provided
that the Commissioner of Central Excise (Appeals) may, if he
is satisfied that the appellant was prevented by sufficient
cause from presenting the appeal within the aforesaid period
of two months, allow it to be presented within a further
period of one month
4.2 The above statutory provisions restrict any appeal to be
filed within a period of two months from the date of receipt
of the decision or order of the Adjudicating Authority and the
proviso to Section 85(3A) of the Act above empowers the
Commissioner of Central Excise (Appeals), to allow the
appeal to be filed within a further period of one month, if he
is satisfied that the appellant was prevented by sufficient
cause for presenting the appeal within the aforesaid period
of two month.
4.3 I find that in the instant case, the appellant has
requested for condonation of delay. Since, the Commissioner
(Appeals) can condone the delay of one month only and the
delay in the instant case is much beyond this time limit, I
find that the appeal filed by the appellant beyond the
prescribed time limit, is time barred and as such, is liable for
dismissal.
4.4 Even the Hon'ble Supreme Court in the case of M/s
Singh Enterprises vs. Commissioner of Central Excise,
Jamshedpur 2008 (221) E.L.T. 163 (SC), inter alia, held, as
under:
Appeal to Commissioner (Appeals) - Limitation -
Condonation of delay - Appeal filed after 21 months from
date of service of order dismissed by Commissioner
(Appeals) - Writ petition filed against impugned order
dismissed by High Court - Appeal to be filed within 60 days
from date of communication of order - Delay condonable
further period of 30 days on sufficient cause being shown-
Appellate authority having no power to allow appeal
presented beyond the said 30 days - Impugned orders
sustainable - Section 35 of Central Excise Act, 1944, paras
2, 3, 8/
Appeal to Commissioner (Appeals) - Limitation - Appeal to
be filed within 60 days from date of communication of order
Commissioner (Appeals) empowered to condone delay of
further period of 30 days only - Section 5 of Limitation Act,
1963 not applicable - Section 35 of Central Excise Act, 1944.
The proviso to sub-section (1) of Section 35 ibid makes the
position crystal clear that the appellate authority has no
power to allow the appeal to be presented beyond the period
of 30 days. The language used makes the position clear that
3 Service Tax Appeal No.70229 of 2024
the legislature intended the appellate authority to entertain
the appeal by condoning delay only upto 30 days after the
expiry of 60 days which is the normal period for preferring
appeal. (para 8]
Appeal - Limitation - Power of High Court/Supreme Court to
condone delay Supreme Court decision in 1998 (101) E.L.T.
9 (S.C.) on condonation of delay in filing appeal - No law
declared in the impugned decision to the effect that
Supreme Court can direct condonation even when the
statute prescribed particular period of limitation Such stand
would render specific provision providing for limitation rather
otiose - Section 35 of Central Excise Act, 1944. [para 10)
5. In view of the above, I hold that the present appeal filed
by the appellant is not maintainable and as such, the same
is rejected."
1.2 From the above I observe that the Appeal has been
dismissed just for the reason that Commissioner (Appeals) could
not have condoned the delay beyond the period of 30 days after
two months from the date of receipt of the order.
2.1 Appellant in the ground of appeal have stated as follows:-
"The short question involved in this appeal, as to whether
when the appellant sent their appeal to the learned
Commissioner(Appeals) CGST & Central Excise, Allahabad
along with their condonation of delay application through
Fast DTDC Courier, from Agra, having receipt No.
V93949009 Dated 22/10/2022, which was sent by them well
within the time limit, as specified under Section 85(3A) of
the Finance Act, 1994 & which reached Allahabad on
27.10.2022 and attempt was by courier company to deliver
the same on 27.10.2022/28.10.2022[Thursday- Friday], but
the same could not delivered on that day, as no one found to
receive the same in the Office of the Commissioner(Appeals)
CGST & Central Excise, Allahabad, That again the attempt
was made by Courier Company to deliver the same on
29.10.2022[ on Saturday], 31.10.2022[ on Monday], but the
same was not received by anyone in the office of the
Commissioner(Appeals) CGST & Central Excise, Allahabad,
however the same was delivered only on 01/11/2022 as per
delivery status of the courier agency service. However as per
the records of the Appeal Office the same was shown to be
received on 03/11/2022. In that view, in absence of the
4 Service Tax Appeal No.70229 of 2024
taking of delivery by the concerned person in the Office of
the Commissioner(Appeals) CGST & Central Excise,
Allahabad, can appeal, be termed as time barred, as held by
the learned Commissioner(Appeals) CGST & Central Excise,
Allahabad in the instant case of the Appellant. That the last
date of delivery of appeal was 01.11.2022 as per Section
85(3A) of the Finance Act, 1994, which prescribe two
months along with one month[ which is the period to be
condoned by the Commissioner(Appeals) if there is sufficient
cause for delay in filing in appeal and as per the impugned
order in appeal & the learned Commissioner(Appeals)
condoned one month's time, therefore three months time, as
per Section 85(3A) of the Finance Act, 1994 would end on
01/111/2022 & from the delivery status of the courier
agency, the same was delivered on 01/11/2022, hence there
is no delay in filing this appeal, as per status of delivery
status of courier agency, but as per the records of the Office
of the Commissioner(Appeals), Allahabad the same was
shown to be received only on 03.11.2022, hence there is
delay of three days, as per the record of office of the
Commissioner(Appeals) CGST & Central Excise, Allahabad.
2. Because a letter in this regard was sent to the learned
Commissioner(Appeals) on 16/11/2022 intimating the
factual position enclosing therewith the tracking record of
DTDC Courier company, however no comments on the same
was made by the learned Commissioner(Appeals) in their
impugned O-I-A."
3.0 I have heard Smt. Stuti Saggi, Advocate for the Appellant
and Smt. Chitra Srivatava, Authorized Representative for the
Revenue.
4.1 In the present case I find that the Order-In-Original dated
25.05.2022 was dispatched on 14.07.2022 and on the same
date of receipt is indicated as 31.07.2022 and the same is
reproduced below:-
5 Service Tax Appeal No.70229 of 2024
4.2 In terms of the above date the appeal could have been
filed within 02 Months from the date of receipt of the order
without any application for Condonation of Delay and thereafter
with an application for Condonation of Delay within a period of
next 30 days. Thus appeal could have been filed up till
30.10.2022. In the present case appeal has been received in the
office of the Commissioner (Appeals) on 01.11.2022 for that
reason the same has been dismissed.
6 Service Tax Appeal No.70229 of 2024
4.3 The impugned order does not give any details with regards
to the date of receipt and reason for delay in receipt. In the
grounds of appeal reproduced above Appellant have categorically
stated that the appeal was dispatched well within expiry of 30
days of extended period of limitation and even delivery was
attempted by the Courier Company on 27th, 28th, 29th and 31st
November, 2022, however, the same was not delivered as none
was found in the office of the Commissioner (Appeals) to receive
the same. Finally it was delivered on 31.11.2022.
4.4 They have supported their submissions by the tracking
details of the Courier Company which is reproduced below:-
7 Service Tax Appeal No.70229 of 2024
4.5 From the perusal of the above track consignment status it
is evident that the said appeal was booked for being forwarded
to the office of Commissioner (Appeals) on 22 October, 2022 and
it was received and out for delivery on 27th October, 2022 but
could not have been delivered for some reason or other till 01st
November, 2022. Appellant having dispatched the appeal within
the extended period of limitation and the appeal was out for
delivery prior to expiry of the extended period of limitation, then
they could not have been faulted for this reason and the appeal
should not be held barred by limitation.
4.6 The Hon'ble Bombay High Court in the case of Skoda Auto
Volkswagen India Pvt. Ltd. V/s Commissioner (Appeals) reported
at 2021 (50) GSTL 67 (Bom.) wherein in similar facts of the case
similar order of the Commissioner (Appeals) has been set aside
and matter is remanded back. The observations made by the
Hon'ble Bombay High Court is reproduced below:-
"20. At the outset it would be appropriate to first take note of the
undisputed dates as the dates are most relevant in the present
case.
20.1 Adjudicating officer passed the order-in-original on 8-7-
2019. However, this order was dispatched to the petitioner by the
office of the adjudicating officer by speed post on 29-8-2019. It
was received by the petitioner on 30-8-2019.
20.2 Petitioner dispatched the appeal against the said order-in-
original to respondent No. 1 by speed post in the correct address
on 2-12-2019. Respondent No. 1 received the appeal on 4-12-
2019. Petitioner also sent application for condonation of delay on
5-12-2019, which was received by the office of respondent No. 1
on 9-12-2019.
21. Since the matter relates to levy of service tax, filing of appeal
is governed by Section 85 of the Finance Act, 1994, as amended.
Section 85 reads as under :-
"85 (1) Any person aggrieved by any decision or order passed by
an adjudicating authority subordinate to the Principal
Commissioner of Central Excise or 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, relating to service tax, interest or penalty under this
Chapter made before the date on which the Finance Bill, 2012
receives the assent of the President :
Provided that the Commissioner of Central Excise (Appeals) may, if
he is satisfied that the appellant was prevented by sufficient cause
8 Service Tax Appeal No.70229 of 2024
from presenting the appeal within the aforesaid period of three
months, allow it to be presented within a further period of three
months.
(3A) An appeal shall be presented within two months from the
date of receipt of the decision or order of such adjudicating
authority, made on and after the Finance Bill, 2012 receives the
assent of the President, relating to service tax, interest or penalty
under this Chapter :
Provided that the Commissioner of Central Excise (Appeals) may, if
he is satisfied that the appellant was prevented by sufficient cause
from presenting the appeal within the aforesaid period of two
months, allow it to be presented within a further period of one
month.
(4) The Commissioner of Central Excise (Appeals) shall hear and
determine the appeal and, subject to the provisions of this
Chapter, pass such orders as he thinks fit and such orders may
include an order enhancing the service tax, interest or penalty :
Provided that an order enhancing the service tax, interest or
penalty shall not be made unless the person affected thereby has
been given a reasonable opportunity of showing cause against
such enhancement.
(5) Subject to the provisions of this Chapter, in hearing 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."
22. From the above, we find that as per sub-section (1), any
person aggrieved by any decision or order passed by an
adjudicating authority subordinate to the Principal Commissioner of
Central Excise or Commissioner of Central Excise, may appeal to
the Commissioner of Central Excise (Appeals). Sub-section (2)
says that every appeal shall be in the prescribed form and shall be
verified in the prescribed manner. Limitation for filing of such
appeal is provided in Sections 3 and 3A; Section 3 not being
relevant in this case as the order-in-original was passed after
receipt of assent of the President to the Finance Bill, 2012. As far
as Section 3A is concerned, it says that an appeal shall be
presented within two months from the date of receipt of the
decision or order of the adjudicating authority. As per the proviso,
Commissioner of Central Excise (Appeals) may allow such appeal
to be presented within a further period of one month if he is
satisfied that the appellant was prevented by sufficient cause from
presenting the appeal within the prescribed period of two months.
22.1 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.
23. Before we analyze the provision relating to filing of appeal in
matters of central excise, which at the first blush appears to be
pari materia to Section 85(3A), what is noticeable in Section
85(3A) is that the word 'presented' is used and not 'filed'. In other
words, the appeal is to be presented and not filed. Thus,
presentation of appeal has to be within two months from the date
of receipt of the order or decision appealed against. Therefore, the
9 Service Tax Appeal No.70229 of 2024
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.
24. Section 35 of the Central Excise Act, 1944 deals with appeals
filed in respect of order-in-original passed by the adjudicating
authority in matters relating to central excise. Sub-section (1) of
Section 35 provides for filing of appeal against such order before
the Commissioner of Central Excise (Appeals) within 60 days from
the date of communication of such decision or order. As per the
proviso, the appellate authority may allow presentation of such
appeal within a further period of 30 days if he is satisfied that the
appellant was prevented by sufficient cause from presenting the
appeal.
24.1 Without much deliberation at this stage what is immediately
noticeable is that under Section 35 of the Central Excise Act, 1944,
the limitation period is 60 days from the date of communication,
extendable by another period of 30 days. On the other hand, in
sub-section (3A) of Section 85 of the Finance Act, 1994, as
amended, the limitation period for presentation of appeal is two
months from the date of receipt of the decision or order,
extendable by a further period of one month. We will advert to this
aspect in more detail a little later.
25. Commissioner (Appeals) took the date of filing of appeal as
4-12-2019, which was the date of receipt of the appeal by the
Commissioner (Appeals) sent by speed post on 2-12-2019.
Referring to the language of sub-section (3A) of Section 85 of the
Finance Act, 1994, he held that the appeal filed was beyond the
extended period of limitation and at his level, the delay could not
be condoned. He also held that the provisions of Section 85 of the
Finance Act, 1994 are pari materia to those of Section 35 of the
Central Excise Act, 1944. In this connection, reliance was placed
on a decision of the Supreme Court in Singh Enterprises v.
Commissioner of Central Excise, 2008 (221) E.L.T. 163 in which
case Supreme Court affirmed the view taken by the appellate
authority and the High Court that there was no power to condone
the delay after expiry of the extended period of 30 days.
Resultantly, the application for condonation of delay was rejected
and the appeal was dismissed as being time-barred. Relevant
portion of the impugned order dated 27-2-2020 passed by
respondent No. 1 is extracted hereunder :-
"18.1 On perusal of the above referred provision, it is seen that
the time limit for filing an appeal in Service Tax matters is
governed in terms of provisions of Section 85(3A) of the Finance
Act, 1994, wherein the time specified for filing an appeal is two
months from the date of receipt of the impugned order. However,
if the Commissioner is satisfied that the appellant was prevented
by sufficient cause from presenting the appeal within the aforesaid
period of two months, he can allow it to be presented within a
further period of one month. In other words, the appeal has to be
filed within two months but in terms of the proviso further one
month time can be granted by the appellate authority to entertain
the appeal. The proviso to sub-section (3A) of section 85 makes
the position crystal clear that the appellate authority has no power
to allow the appeal to be presented beyond the period of one
month over and above the normal period of two months.
18.2 In the present case, it is established that the appellant has
received the impugned OIO on 30-8-2019. The appellant was
required to file the appeal within two months period (normal
period for filing appeal) i.e. by 30-10-2019. The period may be
10 Service Tax Appeal No.70229 of 2024
extended by another one month if the delay is explained
satisfactorily. The appeal could still have been filed within further
one month's period from 30-10-2019 i.e. by 30-11-2019 with an
application for condonation of delay in filing appeal. I find that the
present appeal has been filed on 4-12-2019. Thus Commissioner
(Appeals) can condone the delay upto one month only if he is
satisfied that the appellant was prevented by sufficient cause from
presenting the appeal within prescribed two months. But in the
present case, the appellant has filed the appeal after three months
. Therefore, the delay of more than one month cannot be
condoned at my level in accordance with Section 35 of the Central
Excise Act, 1944/Section 85(3A) of the Finance Act, 1994.
Accordingly, the above referred appeal is time-barred and cannot
be entertained under Section 35 of the Central Excise Act,
1944/Section 85(3A) of the Finance Act, 1994.
19. In Tops Security Ltd. v. CCE, Hyderabad, the same provision
of the Finance Act, 1994 (Section 85) was considered and it was
held that Commissioner (Appeals) has no power to condone delay
in filing appeal beyond statutory period beyond the maximum
period prescribed under the statute which is a settled position of
law. The Tribunal also relied and applied earlier decisions in case of
Delta Impex v. CCE - 2004-TMI-47071-(High Court of Delhi) and
M.R. Tobacco Pvt. Ltd. v. UOI - 2004-TMI-47158-(High Court of
Delhi). This issue came to a finality vide the Hon'ble Apex Court
Judgment in the matter of Singh Enterprises [2008 (221) E.L.T.
163 (S.C.)] wherein the Hon'ble Apex Court held, inter alia, as
under :
'8. The Commissioner of Central Excise (Appeals) as also the
Tribunal being creatures of Statute are vested with jurisdiction to
condone the delay beyond the permissible period provided under
the Statute. The period up to which the prayer for condonation can
be accepted is statutorily provided. It was submitted that the logic
of Section 5 of the Indian Limitation Act, 1963 (in short the
'Limitation Act') can be availed for condonation of delay. The first
proviso to Section 35 makes the position clear that the appeal has
to be preferred within three months from the date of
communication to him of the decision or order. However, if the
Commissioner is satisfied that the appellant was prevented by
sufficient cause from presenting the appeal within the aforesaid
period of 60 days, he can allow it to be presented within a further
period of 30 days. In other words, this clearly shows that the
appeal has to be filed within 60 days but in terms of the proviso
further 30 days time can be granted by the appellate authority to
entertain the appeal. The proviso to subsection (1) of Section 35
makes the position crystal clear that the appellate authority has no
power to allow the appeal to be presented beyond the period of 30
days. The language used makes the position clear that the
legislature intended the appellate authority to entertain the appeal
by condoning delay only up to 30 days after the expiry of 60 days
which is the normal period 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.'
In such light it is observed that the above case law is in context of
Section 35 of the Central Excise Act, 1944. The provision of
Section 85 of the Finance Act, 1994 are 'pari materia' with those of
Section 35 of the Act of 1944, thus citation would be squarely
applicable in all of the instant matters, as the appeals covered
under the present case relate to Central Excise matter as well as
Service Tax matters.
11 Service Tax Appeal No.70229 of 2024
20. Hence, I find that the appeal bearing No. 199/2019-20 is
beyond my purview. In view of the above and without going into
the merits of the case, I pass the following order :
ORDER
The application for condonation of delay in filing the appeal in respect of appeal No. 199/2019-20 is rejected. The main appeal, being time-barred, is also dismissed in limine without going into merits of the case."
25.1 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.
26. 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.
27. As per sub-section (35) of Section 3 of the General Clauses Act, the word 'month' has been defined to mean a month reckoned according to the British calendar.
27.1 In the case of In Re : V.S. Metha, AIR 1970 AP 234, Andhra Pradesh High Court was considering the provisions of Section 106 of the Factories Act, 1948 as per which no Court shall take cognizance of any offence punishable under the said Act unless complaint thereof is made within three months from the date on which the alleged commission of the offence came to the knowledge of the inspector. In that context, Andhra Pradesh High Court examined the meaning of the word 'month' : whether it would mean 30 days in which case the complaint should be filed within 90 days from the date of knowledge. After referring to Section 3(35) of the General Clauses Act, it was held that the word 'month' would mean a calendar month and by extension the term 'three months' as appearing in Section 106 of the Factories Act, 1948 would only mean a period of three calendar months.
27.2 Again, in Bibi Salma Khatoon v. State of Bihar, AIR 2001 SC 3596, Supreme Court dealt with the provisions of Section 16(3) of the Bihar Land Reforms Act, 1961 which provided that benefits under the said Act could be availed of if an application is made within three months of the date of registration of the documents of transfer. Posing the question as to what was meant by the word 'month', Supreme Court held that British calendar would mean Gregorian calendar. It was held that when the period prescribed is a calendar month running from any arbitrary date, the period of one month would expire upon the day in the succeeding month corresponding to the date upon which the period starts.
27.3 Supreme Court in State of H.P. v. M/s. Himachal Techno Engineers, 2010 AIR SCW 5088 considered the period of limitation prescribed under sub-section (3) of Section 34 of the Arbitration and Conciliation Act, 1996. While Section 34 relates to application for setting aside arbitral award, sub-section (3) thereof prescribes 12 Service Tax Appeal No.70229 of 2024 the period of limitation for filing of such application which is three months. In that context, Supreme Court examined the meaning of the word 'month' and held that a month does not refer to a period of 30 days but refers to the actual period of a calendar month. It was clarified that if the month is April, June, September or November, the period comprising the month will be 30 days; if the month is January, March, May, July, August, October or December, the month will comprise of 31 days; but if the month is February, the period will be 29 days or 28 days depending upon whether it is a leap year or not. After referring to Section 3(35) of the General Clauses Act, it was held that the general rule is that the period ends on the corresponding date in the appropriate subsequent month irrespective of some months being longer than the rest. Therefore, it was held that when the period prescribed is three months (as contrasted from 90 days) from a specific date, the said period would expire in the third month on the date corresponding to the date upon which the period starts. As a result, depending on the months, it may mean 90 days or 91 days or 92 days or 89 days.
28. We have noticed that the order passed by the adjudicating authority was dispatched to the petitioner by speed post and the petitioner received the same on 30-8-2019. Petitioner also dispatched the appeal to respondent No. 1 by speed post on 2-12- 2019. This was received by respondent No. 1 on 4-12-2019 who treated or construed the date of receipt of the appeal by speed post as the date of presentation of the appeal. Respondent No. 1 has not taken or raised any objection as to dispatch of appeal by speed post. Nonetheless since this aspect has come to our notice it needs to be clarified that there is no bar under Section 85(3A) of the Finance Act, 1994, as amended, or the rules framed thereunder i.e., the Service Tax Rules, 1994 for dispatching or presentation of appeal by speed post or by post.
29. In Bhikha Lal v. Munna Lal, AIR 1974 Allahabad 366 (Full Bench), it was held that if the creditor and the debtor reside at two different places served by postal system, from the very fact that the creditor makes a demand through the post, an authority to the debtor to meet his obligation through the post is implied. In the facts of that case, it was held that as the appellants demanded arrears of rent by letter sent through post, it would amount to an authorization or invitation to the respondent to make the payment through post.
29.1 We are in respectful agreement with the views expressed by the Full Bench of Allahabad High Court. That being the position, we hold that there was no infirmity on the part of the petitioner in dispatching the appeal by post; speed post in the present case as the order challenged in the appeal was sent to the petitioner by speed post.
30. Coming back to Section 85(3A), we find that while prescribing the period of limitation, Parliament has used the expression "within two months from the date of receipt of the decision or order", which is of course extendable by a further period of one month in an appropriate case. We have already discussed above that a month means and has to be reckoned according to the British calendar and not by the number of days comprising a month. In so far the word 'from' appearing in sub-section (3A) is concerned, it appears from the language used that the period of limitation is to be counted from the date of receipt of the decision or order.
30.1 In this connection, Section 9 of the General Clauses Act is quite instructive and the same is extracted hereunder :-
13 Service Tax Appeal No.70229 of 2024 "9. Commencement and termination of time. - (1) In any Central Act or Regulation made after the commencement of this Act, it shall be sufficient, for the purpose of excluding the first in a series of days or any other period of time, to use the word 'from', and, for the purpose of including the last in a series of days or any other period of time, to use the word 'to'.
(2) This section applies also to all Central Acts made after the third day of January, 1868, and to all Regulations made on or after the fourteenth day of January, 1887."
30.2 As per sub-section (1) of Section 9 when the word 'from' is used, the first day in a series of days or any other period of time is to be excluded. But when the word 'to' is used, the last day in a series of days or any other period is to be included. Thus, Section 9 of the General Clauses Act statutorily recognizes that while computing the time period, the first date is to be excluded when the word 'from' is used and to include the last date when the word 'to' is used.
31. In Tarun Prasad Chatterjee v. Dinanath Sharma, (2000) 8 SCC 649, Supreme Court explained the principle contained in Section 9 and held that when a period is delimited by statute or rule which has both a beginning and an end, and the word 'from' is used indicating the beginning, the opening day is to be excluded and if the last day is to be included the word 'to' is to be used. It was held thus :-
"In order to apply Section 9, the first condition to be fulfilled is whether a prescribed period is fixed "from" a particular point. When the period is marked by terminus a quo and terminus ad quem, the canon of interpretation envisaged in Section 9 of the General Clauses Act, 1897 require to exclude the first day."
32. This position was also explained by a Division Bench of the Allahabad High Court in Ashok Kumar Tiwari (supra) where it was held that the day on which the order was received by the assessee would have to be excluded in view of the provisions of Section 9 of the General Clauses Act.
32.1 At this stage we may also mention that in sub-section (3A) of Section 85, while the word 'from' is used to indicate commencement of the limitation period, the word 'to' is conspicuous by its absence to indicate capping of the limitation period.
33. There is one more aspect which we would like to deal with before we revert back to the calculation of the limitation period and this is that respondent No. 1 has construed the date of receipt of the appeal by speed post as the date of presentation of the appeal i.e., 4-12-2019 and therefore, it was held that the appeal was beyond the period of limitation.
34. In Jhabboo Lal Kesara Rolling Mills (supra), a Division Bench of the Allahabad High Court took the view that if the appeal was sent by registered post to the appellate authority at the correct address within the period of limitation but was received beyond the period of limitation that would not render it barred by limitation. This principle will apply where it is found that the appeal had been dispatched to the appellate authority prior to the expiry of the period of limitation.
35. This position has been reiterated by the High Court of Kerala in Bannari Amman Steels (P) Ltd. (supra) where it has been held that when the appeal was dispatched to the appellate authority prior to the expiry of the period of limitation, it would not be 14 Service Tax Appeal No.70229 of 2024 barred by limitation if the same was received after the period of limitation.
36. Thus having a clear picture of the legal position, we may now address the issue at hand. Petitioner received the order-in-original sent by speed post on 30-8-2019. As per Section 9 of the General Clauses Act, this date would have to be excluded while counting the limitation period of two months which would then commence from 31-8-2019. We have also seen that 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 up to 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 31-8-2019 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 1-12-2019. 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 1-12-2019. But it was dispatched on 2-12-2019.
37. At this stage, we may refer to Section 10 of the General Clauses Act. Section 10 reads as under :-
"10. Computation of time. - (1) Where, by any Central Act or Regulation made after the commencement of this Act, any act or proceeding is directed or allowed to be done or taken in any Court or office on a certain day or within a prescribed period, then, if the Court or office is closed on that day or the last day of the prescribed period, the act or proceeding shall be considered as done or taken in due time if it is done or taken on the next day afterwards on which the Court or office is open :
Provided that nothing in this section shall apply to any act or proceeding to which the Indian Limitation Act, 1877 applies.
(2) This section applies also to all Central Acts and Regulations made on or after the fourteenth day of January, 1887."
37.1 The object of this provision was succinctly explained by the Supreme Court in Harinder Singh v. S. Karnail Singh, AIR 1957 SC 271 wherein their Lordships stated that the object of this section is to enable a person to do what he could have done on a holiday, on the next working day. Where, therefore, a period is prescribed for the performance of an act in a Court or office, and that period expires on a holiday, then according to this section the act should be considered to have been done within that period, if it is done on the next day on which the Court or office is open. For Section 10 to apply the requirement is that there should be a period prescribed and that period should expire on a holiday. Section 10 itself indicates that this provision is for computation of time. Therefore, if the limitation for filing an appeal or the extended period for filing an appeal expires on Sunday but it is filed on Monday, then by operation of section 10 it would be deemed to have been done within time.
38. We find that 1-12-2019 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 2-12-2019 would be construed to be within the extended period of limitation, 1-12-2019 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.
15 Service Tax Appeal No.70229 of 2024
39. Before parting with the record we may refer to the decision of the Supreme Court in M/s. Glaxo Smith Kline Consumer Health Care Limited (supra) relied upon by Learned Counsel for the respondents. The issue before the Supreme Court in that case was whether the High Court in exercise of its writ jurisdiction under Article 226 of the Constitution of India ought to have entertained a challenge to the assessment order on the sole ground that the statutory remedy of appeal against the said assessment order stood foreclosed by the law of limitation. As would be evident from the above, the issue before the Supreme Court was quite different from the one which we are adjudicating in the present proceeding. Nonetheless, we may mention that Supreme Court considered the provision of filing appeal under the Andhra Pradesh Value Added Tax Act, 2005. As per Section 31 of the said Act, an appeal could be preferred against the assessment order within 30 days of service of the order which period is extendable by a further period of 30 days if the appellate authority is satisfied that the appellant had sufficient cause for not preferring the appeal within the initial period of 30 days. In that case, the appeal was filed even beyond the extended period of limitation which was rejected by the appellate authority on the ground that it had no power to condone the delay beyond 30 days. However, the High Court under Article 226 of the Constitution of India entertained the writ petition challenging the order of assessment and set aside the order of assessment, relegating the petitioner to the assessing authority for reconsideration of its assessment. It was in this factual backdrop that Supreme Court answered the question framed by holding that the High Court ought not to have entertained the writ petition whereafter the judgment of the High Court was set aside and the writ petition was dismissed.
39.1 Evidently, the provision of law and computation of the period of limitation in M/s. Glaxo Smith Kline Consumer Health Care Limited (supra) and in the present case are quite different. Issues arising for consideration are also different since in this case we are examining the legality and validity of the order of respondent No. 1 in rejecting the appeal of the petitioner as being time-barred.
40. Thus upon thorough consideration of the matter, we hold that dispatch of the appeal by the petitioner on 2-12-2019 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.
41. Consequently, we set aside the order dated 27-2-2020 passed by respondent No. 1 and remand the matter back to respondent No. 1 to consider afresh the application of the petitioner for condonation of delay in filing the related appeal."
4.8 I also find that Appellant had relied upon following decisions in their support:-
(i) Vishkarma Agriculture Industries V/s Union of India [2019 (368) E.L.T. 398 (P.H.)
(ii) Paper Machine Wire Industries V/s Collector of C.Ex., Aurangabad 1998 (99) E.L.T. 106 (Tribunal) 16 Service Tax Appeal No.70229 of 2024 4.9 In the case of Kella Appalaswamy And Sons [[1977]106 ITR 487 (ORISSA)] Hon'ble Orissa High Court held as follows:
"9. Obviously, the answer rendered by the Full Bench was in the facts and cicrumstances of that case. As the facts of that case show, on the 56th day, the assessee had transmitted the memorandum of three appeals by registered post from Cuttack to the Registrar of the Appellate Tribunal at Bombay and the appeals were received on April 7, 1954, one day after the expiry of the period prescribed under Section 33 of the Indian Income-tax Act of 1922. The Tribunal while rejecting the application for condonation of delay had taken the view that there was no justification for the appellant to wait till the 56th day because it should have known that under ordinary circumstances transmission of documents sent under registered post from Cuttack to Bombay would take more than four days. In Govinda Chowdhury's case [1960] 40 ITR 93 (Orissa) [FB] the Full Bench of this court took the view, reversing an earlier decision of this court in the case of Sri Popsing Rice Mill v. Commissioner of Income- tax [1949] 17 ITR 420 (Orissa) that the postal department was an agent of the sender and not of the Appellate Tribunal--the addressee. Relying on the said principle and in the facts of the case, this court in Brajabandhu Nanda's case [1962] 44 ITR 668 (Orissa) [FB] came to the conclusion that the postal delay could not be accepted as constituting sufficient cause for non-presentation of the appeal within the prescribed period. We are afraid, the Tribunal has failed to appreciate the import of the decision and has surrendered the discretion vested in it by statute under confusion. The proposition laid down by the Tribunal would mean that a statutory mode of presentation of appeals available to assessees would be rendered ineffective. Consider a case where on the second day of receipt of the decision of the Appellate Assistant Commissioner, the assessee transmits the memorandum of appeal to the Tribunal. On account of unforeseen supervening circumstances, the papers are not received within the prescribed period. Would it be appropriate to hold that because delay in postal delivery cannot be considered as constituting sufficient cause on the 17 Service Tax Appeal No.70229 of 2024 authority of Brajabandhu Nanda's case [1962] 44 ITR 668 (Orissa) [FB] the delay in the preferring of the appeal is not condonable. We do not think there can be a second opinion in the matter ; if the Tribunal in such a case does not condone the delay, a grave error must be found to have arisen and the situation would call for intervention.
10. Looking at the matter from this angle, we are of the view that the Tribunal has failed to exercise jurisdiction vested in it under Sub-section (5) of Section 253 of the Act having been misled by the conclusion indicated by the Full Bench of this court in Brajabandhu Nanda's case [1962] 44 ITR 668 (Orissa) [FB]. The conclusion was not a rule for every case but was the conclusion reached on the facts and in the circumstances of that case. Where jurisdiction vests even if it be discretionary and the authority acts in a manner not being cognizant of its own jurisdiction, the conclusion is vitiated. We have no doubt that, in the facts of the case, such a situation has arisen.
11. Jeypore in the District of Koraput from where the memorandum of second appeal was sent by post and the seat of the Tribunal at Cuttack are not too distant. With the modern methods of improved communication, normal postal transit between the two ends does not take more than two days. That fact has also been established in this very case because the memorandum of appeal despatched on 13th January, 1971, has been received in the Tribunal's office on 15th January, 1971. Taking judicial notice of the manner in which money order remittances are sent, there is no justification for the money order remittance taking more than a day or two beyond the period required for the postal mail. Taking this aspect of the matter into consideration, where an assessee transmitted the appeal nine days before limitation was to set in, in the facts of the case, it cannot be said that there was any negligence or default on the part of the assessee. As a reasonable person, bona fide intending to prefer an appeal against the decision of the Appellate Assistant Commissioner, the assessee, in usual course and taking due precaution in the matter, despatched the memorandum of appeal and remitted the requisite fee. The postal delay in this case is of an unusual type and cannot be 18 Service Tax Appeal No.70229 of 2024 taken to be an event of the ordinary run. If the Tribunal had looked at the matter with an open mind and being conscious of the fact that it has jurisdiction to condone the delay, we do not think it would have come to the conclusion that the appeal deserved to be dismissed as being barred by limitation.
12. There is yet another aspect of the matter in favour of the assessee. As already stated, the assessee enclosed the money order receipt with the memorandum of appeal and that receipt had been received in the office of the Appellate Tribunal on the 15th January, 1971, along with the memorandum of appeal. The Tribunal has found that remittance of the fee prescribed under Section 253(6) of the Act by money order is not prohibited under the Rules. Nothing has been shown to us to take a contrary view. In these circumstances, reliance has rightly been placed by learned counsel for the assessee on a Bench decision of the Madhya Pradesh High Court in the case of J. K. Agents Pvt. Ltd. v. Commissioner of Income-tax [1972] 86 ITR 793, 796 (MP). The learned Chief Justice, after reviewing various decisions of different courts and after considering the note that was then attached to Rule 22(a) of the Income-tax Rules of 1922, has observed :
"This note, therefore, clarifies the words of the section itself and thereby indicates that the provision of the section regarding accompanying of fee of Rs. 100 does not necessarily mean that a cash amount of Rs. 100 must in each case accompany the application and must reach the office. The alternative expressly provided as a suggestion is the process of deposit either in the treasury or in one of the banks mentioned. The challan has to be passed by the Income-tax Officer and not by the office of the Tribunal so that if such a challan is accompanied with the papers, the money does not really reach the office of the Tribunal. The office merely receives an assurance that the money has reached the Government through some department. It has also to be noted that there are certain things which have been prohibited by this note, e.g., payment by cheques or other negotiable instruments. It is silent about payment being sent by money order or through other methods not 19 Service Tax Appeal No.70229 of 2024 specified either way. These provisions make it clear that the method by which the money has to reach the Tribunal is flexible and that any reasonable process can be utilized for sending the money to the Tribunal. It is expressly provided under the Rules that the application and the papers themselves can be sent by registered post. Where the assessee resides outside the station, he sends the papers by registered post. Obviously, the cash cannot accompany the application and he has to send it either through post office or through some bank. If under the note to the form a payment to the bank and the receipt thereof is considered as sufficient payment within time, we see no reason why the assessee, who has made a payment to the post office and has attached the receipt of such payment with the papers, should not be treated as having substantially complied with the requirements of the Act."
13. The conclusion of Dayal C.J. does not stand alone in the field. We do not propose to refer to the cases relied on in the said decision or otherwise cited at the Bar because, in our view, the approach is very appropriate and wholesome. It must always be remembered as was pointed out by Lord Buckmaster in Montreal Street Railway Company v. Normandin [1917] AC 170 (PC) that all rules of this type are nothing but provisions intended to secure proper administration of justice. It is, therefore, essential that they should be made to serve and be subordinate to that purpose. In the case of State of Gujarat v. Ramprakash P. Puri [1970] 2 SCR 875 (SC), the Supreme Court pointed out that procedure is the hand-maid and not a mistress of law, intended to subserve and facilitate the course of justice and not to govern or obstruct it. Like all rules of procedure this rule demands a construction which would promote this cause. Looked at from this angle, it must be held that there was no limitation at all and assessee's appeal satisfied all the requirements of law and was entitled to be disposed of on merits.
14. For the reasons we have indicated above, our answer to the question referred, therefore, is:
20 Service Tax Appeal No.70229 of 2024 "On the facts and in the circumstances of the case, the order of the Appellate Tribunal rejecting the appeal as barred by time is incorrect in law..."
4.10 In view of the above decisions, I do not find any merits in the manner in which the appeal filed by the Appellant has been dismissed. In my view in term of the decision of the Hon'ble Bombay High Court the appeal should be treated as filed within the extended period of limitation and consequences should follow. The Application for Condonation of Delay should have been considered treating the appeal to be filed within the extended period of limitation.
5.1 The Appeal is allowed by way of remand to the First Appellate Authority for consideration of the Condonation of Delay Application filed by the Appellant and if the Application is allowed the issue may be decided on merits.
5.2 As the matter is substantially old the matter in remand proceeding should be finalized by Commissioner (Appeal) within three months of receipt of this order.
(Operative part of the order is pronounced in open court) Sd/-
(SANJIV SRIVASTAVA) MEMBER (TECHNICAL) Nihal