Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN TUESDAY, THE 28TH DAY OF MAY 2024 / 7TH JYAISHTA, 1946 WP(C) NO. 16993 OF 2024 PETITIONER:
A. S ANIYAN PILLAI AGED 63 YEARS S/O. N. SHANMUGHAN PILLAI, RESIDING AT KOCHUTHEKKETHIL HOUSE, KARTHIKANILAYAM, KUTTOOR P.O, THIRUVALLA, PATHANAMTHITTA DISTRICT, PIN – 689 106.
BY ADVS.
S. JAYAKRISHNAN SUKUMARAN NAIR S. PARAMESWARA PRASAD RESPONDENTS:
1 THE COMMISSIONER, OFFICE OF THE COMMISSIONER (APPEALS), CENTRAL TAX, CENTRAL EXCISE AND CUSTOMS, CENTRAL REVENUE BUILDING, IS PRESS ROAD, KOCHI, PIN – 682 018.
2 THE DEPUTY COMMISSIONER OFFICE OF THE DEPUTY COMMISSIONER, CENTRAL GST AND CENTRAL EXCISE, PATHANAMTHITTA DIVISION, THEZETHEKKETHIL TOWER, ST. PETER'S JUNCTION, PATHANAMTHITTA, PIN – 695 002.
SRI. SREELAL N. WARRIER - SC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28.05.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No.16993 OF 2024 2
JUDGMENT The petitioner has filed this writ petition challenging Ext.P5 order whereby the appeal preferred by him against Ext.P1 order under Section 85 of the Finance Act, 1994 (for short, ‘the Act’) was rejected by the 1st respondent as time barred.
2.
Against Ext.P1 order passed by the 2nd respondent under Section 73(2) of the Act, assessing the petitioner’s service tax, the petitioner preferred a writ petition before this Court as W.P.(C) No.2495 of 2022. When the said writ petition came up for consideration, the petitioner sought permission to withdraw the same with liberty to file an appeal before the appellate authority. Accordingly, the writ petition
WP(C).No.16993 OF 2024 3 was dismissed as withdrawn vide Ext.P2 judgment. Paragraph 2 of the said judgment reads as follows:- “2.
Having regard to the submission made by the petitioner, this writ petition is dismissed as withdrawn. The period during which this writ petition was pending before this Court shall be excluded for the purposes of determining the period of limitation for filing the appeal.” 3.
In the light of Ext.P2 judgment, the petitioner preferred an appeal against Ext.P1 order before the 1st respondent. However, the 1st respondent dismissed the appeal by Ext.P3 stating that the petitioner has not complied with the statutory requirement of pre-deposit in terms of Section 35F of the Central Excise Act, 1944.
4.
Against Ext.P3, the petitioner preferred W.P.(C) No.32153 of 2023 before this Court. This Court, by Ext.P4 judgment, quashed Ext.P3 order.
Paragraphs 5 and 6 of the judgment read as
WP(C).No.16993 OF 2024 4 follows:- “5. Considering the fact that the appeal is a statutory appeal and the same is only rejected because of non-deposit of the amount required for entertaining the appeal, I am of the considered opinion that one more opportunity needs to be granted to the petitioner for depositing the amount as required by Section 35F of the Central Excise Act, 1944 for entertaining the statutory appeal on merits.
6. In that view of the matter, the present writ petition is disposed of as follows:- 1) The impugned Exhibit P3 order of rejection of the appeal is quashed.
2) The petitioner is permitted to deposit the amount as envisaged by Section 35F of the Central Excise Act, 1944 towards pre-deposit for entertaining his statutory appeal.
3) If the petitioner deposits the said amount within a period of fifteen days from today, the appellate authority shall consider and decide the appeal afresh in accordance with law.” 5.
Pursuant to Ext.P4 judgment, the petitioner remitted the pre-deposit of Rs.93,582/-.
However, as per Ext.P5 order, the 1st respondent rejected the appeal as time barred. The operative
WP(C).No.16993 OF 2024 5 portion of Ext.P5 order reads as follows:- “6.
I prima facie find that the appeal is hit by the clause of limitation or time bar.
Attention is invited to the provisions of Section 85(3A) of the Finance Act, 1994, which states that an appeal has to be filed within two months from the date of the communication of the impugned order.
Further proviso to Section 85 (3A) provides that the Commissioner (Appeals) may condone the delay upto a period of one month. But in the instant case, there is a delay for more than three months. I observe that there is no provision in the Finance Act, 1994/Service Tax Rules for condonation of delay beyond a further period of one month. Further Hon’ble Supreme Court in the case of Singh Enterprises Vs Commissioner of Central Excise, Jamshedpur [2008 (221) E.O.T 163 (S.C)] has held that the proviso to sub-section (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. Therefore I have no option but to reject the appeal as time barred without further going into the merits of the case.” 6.
From Ext.P5 order, it is seen that the appeal has been rejected on the ground that the petitioner has not given sufficient reason for condoning the delay and the 1st respondent
WP(C).No.16993 OF 2024 6 cannot condone delay beyond three months.
7.
In view of the direction of this Court in Ext.P2 judgment, the period during which the writ petition was pending before this Court has to be excluded for the purpose of determining the period of limitation for filing the appeal. In the light of Ext.P2 judgment, Ext.P5 order passed by the 1st respondent cannot be sustained.
8.
The learned Standing Counsel submits that Ext.P5 order happened to be passed since Ext.P2 judgment was not brought to the notice of the 1st respondent.
9.
In the circumstances, Ext.P5 order is set aside and there will be a direction to the 1st respondent to consider the appeal preferred by the petitioner against Ext.P1 afresh on merits and in accordance with law. Till the appeal is disposed of, there shall not be any recovery proceedings
WP(C).No.16993 OF 2024 7 against the petitioner pursuant to Ext.P1.
The writ petition is disposed of with the above directions.
Sd/- MURALI PURUSHOTHAMAN JUDGE SPR
WP(C).No.16993 OF 2024 8 APPENDIX PETITIONER’S EXHIBITS:- EXHIBIT P1 TRUE COPY OF ORDER NO. 17/2021-22/ST-DC DATED 28.12.2021 PASSED BY THE 2NDRESPONDENT UNDER SECTION 73(2) OF THE FINANCE ACT, 1994.
EXHIBIT P2 TRUE COPY OF JUDGMENT DATED 27.09.2022 IN W.P.(C) NO.2495/2022 OF THIS HON'BLE COURT.
EXHIBIT P3 TRUE COPY OF ORDER IN APPEAL DATED 23.08.2023
PASSED
BY
THE
1ST RESPONDENT.
EXHIBIT P4 TRUE COPY OF JUDGMENT DATED 04.10.2023 IN W.P.(C) NO. 32153/2023 OF THIS HON'BLE COURT.
EXHIBIT P5 TRUE COPY OF ORDER NO. A NO.
108/ST/TVM/2022 DATED 30.01.2024 PASSED BY THE 1ST RESPONDENT.
RESPONDENTS EXHIBITS: NIL.