Jharkhand High Court
Ms Rural Electrification Projects ... vs Union Of India And Ors on 21 November, 2013
Author: R. Banumathi
Bench: Chief Justice, D. N. Patel
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (T) No.4214 of 2013
M/s. Rural Electrification Project, Damodar Valley Corporation
... ... ... ... ... Petitioner
Versus
Union of India and others ... ... ... ... ... Respondents
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CORAM: HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE D. N. PATEL
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For the Petitioner: Mr.Prashant Kumar Singh
For the Respondents: Mr. Ratnesh Kumar
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05/Dated: November, 21, 2013
1) This writ petition has been filed to quash the order dated 27.02.2013
passed in C. No.: ST-87/RAN/2012, Appeal No.36/RAN/2013 passed by
the Commissioner (Appeals) Central Excise & Service Tax, Ranchi, who
dismissed the appeal preferred by the petitioner under Section 85 of the
Finance Act on the ground of limitation.
2) Vide communication dated 14.02.2012, the writ petitioner was directed to
deposit an amount of Rs.51,01,044/-. Alleging that the petitioner is not
bound to pay the amount and that the appellate authority is not accepting
the appeal of the petitioner, the writ petitioner had earlier filed a writ
petitioner being W.P. (T) No.1283 of 2012. That writ petition was
disposed of by this Court vide an order dated 07.09.2012 giving liberty to
the petitioner to prefer an appeal before the competent authority under
Section 85 of the Finance Act and in case of delay in preferring the
appeal, the appeal shall be followed by an appropriate application for
condonation of delay which may be considered sympathetically by the
appellate authority. In furtherance of the liberty granted to the petitioner,
the petitioner had filed an appeal before the Commissioner (Appeals) on
16.10.2012along with an application for condonation of delay on the ground that they are Government Organization and obtaining order from higher officials takes time, hence the delay be condoned.
3) By an order dated 27.02.2013, the Commissioner (Appeals) dismissed the appeal on the ground of limitation. The appeal was filed on 16.10.2012 along with the condonation application and there being a delay of 186 days which is beyond 3 months plus 3 months, which is beyond the competence of the Commissioner (Appeals), Ranchi, to condone the delay in terms of Section 85(3) of the Finance Act, the -2- Commissioner (Appeals) held that as per the judgment reported in 2004 (167) ELT 107 (T), the Commissioner (Appeals) has no power to condone the delay beyond 90 days and as such, he has no alternative but to dismiss the appeal being barred by limitation.
4) Learned counsel for the petitioner submitted that the writ petition was filed on 03.03.2012 and it was disposed of on 07.09.2012 and the time of 6 months 4 days spent in the writ petition ought to have been taken into consideration by the Commissioner (Appeals) and he ought to have given the benefit of Section 14 of the Limitation Act.
5) The contention does not merit acceptance since, in W.P. (T) No.1283 of 2012 in the order dated 07.09.2012, a direction was given to the Commissioner (Appeals) only to consider the application for condonation of delay sympathetically. When the writ petitioner had not made any request in his application for condonation of delay to exclude the period spent in the writ period, under Section 14 of the Limitation Act, it is not open to the petitioner now to pray for the benefit of Section 14 of the Limitation Act.
6) Learned counsel for the petitioner submitted that when this Court has directed the appellate authority vide order dated 07.09.2001 in W.P. (T) No.1283 of 2012 to consider the application for condonation of delay sympathetically, the Commissioner (Appeals) was not justified in dismissing the appeal on the ground that the condonation of delay is beyond the power of the Commissioner (Appeals). As per Section 85 of the Finance Act, 1994, the appeal is to be filed within three months from the date of receipt of the decision or order of the adjudicating authority relating to service tax, interest or penalty, under Chapter V of the Finance Act. In terms of proviso to Section 85, the Commissioner, 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 three months, allow it to be presented within a further period of three months. Thus, the Commissioner (Appeals) has got power to condone the delay for three months and in any event, beyond the period of three months, provided that the appellant shows sufficient cause for delay in presenting the appeal.
7) In this case, the order in the writ petition was passed on 07.09.2012. Thereafter, the appellant had taken more than one month and filed the -3- appeal before the Commissioner (Appeals) on 16.10.2012 and there was a delay of 186 days in filing the appeal. As per Section 85 of the Finance Act, it is mandatory for the Commissioner (Appeals) to condone the delay only for 3 months plus 3 months and beyond that, the Commissioner has no power to condone the delay. When the Commissioner has got no power to condone the delay beyond 3 moths plus 3 months in terms of Section 85 of the Finance Act, the Court cannot issue direction to him to admit the appeal and, therefore, we do not find any reason warranting interference by this Court in the order passed by the Commissioner (Appeals).
8) This application is, therefore, dismissed.
(R. Banumathi, CJ) ( D. N. Patel, J) Manoj/sm