M/S Andaman Holidays Private Limited vs. Union Of INDIA And Ors.
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The petitioner, M/s Andaman Holidays Private Limited, is challenging a confirmed demand of service tax amounting to Rs. 34,57,542/-, including cesses, along with interest and penalty, levied under Sections 73(1), 75, and 78 of the Finance Act, 1994. The petitioner's appeal before the appellate authority was unsuccessful. The appellate authority, by an order dated June 25, 2024, rejected the appeal as being barred by limitation, noting a delay of 351 days. This period excluded the time attributable to the Covid-19 pandemic as per an Apex Court order. The petitioner's writ petition was filed nearly two years after the appellate authority's order. An appeal is also stated to be pending before the Customs, Excise and Service Tax Appellate Tribunal, Kolkata.
Held
The Court held that the appellate authority's decision to reject the petitioner's appeal as barred by limitation was not infirm. The Court noted that the appeal was filed nearly two years after the appellate authority's order dated June 25, 2024. The appellate authority had excluded the period attributable to the Covid-19 pandemic while considering the limitation period, yet found the appeal to be delayed by 351 days. The Court observed that the statutory period for filing an appeal before the Commissioner (Appeals) was two months, extendable by a maximum of one month, totaling 90 days. The petitioner failed to file the appeal within this period. The Court found no provision that granted the Commissioner (Appeals) discretion to condone the delay beyond 90 days. Therefore, the rejection of the appeal on grounds of limitation was upheld. The writ petition was dismissed as devoid of merit.
Key Issues
1. Whether the appellate authority erred in rejecting the petitioner's appeal as barred by limitation, considering the exclusion of the Covid-19 period, under the relevant provisions of the Finance Act, 1994 and applicable procedural laws? The petitioner argued that there was a violation of the principles of natural justice, as they were not adequately heard, and contended that the court should direct consideration of their grievance regarding the legitimacy of the service tax demand. The petitioner also implicitly challenged the appellate authority's decision on limitation by filing the writ petition. The respondents (Union of India and others) did not record any specific arguments in the judgment regarding the petitioner's contentions on natural justice or the merits of the demand. However, their stance, as reflected in the court's decision, was that the appeal was correctly rejected on grounds of limitation.
Sections Cited
Section 73(1), Section 75, Section 78
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1
IN THE HIGH COURT AT CALCUTTA [ CIRCUIT BENCH AT PORT BLAIR ] ***
WPA/364/2026
M/s Andaman Holidays Private Limited
Vs.
Union of India and others
Mr. Promit Majunder [though virtual mode] Mr. R. Sanat
… for the petitioner
Mr. Vipul Kundalia Ms. Ekta Sinha Mr. Anindya Kanan
…for the respondents [though virtual mode]
September 22, 2026 [SR] Item No.5
The petitioner is faced with a confirm demand of service tax amounting to of Rs.34,57,542/- (inclusive of all cesses) along with interest and penalty under section 73(1), 75 and 78 of the Finance Act, 1994. The issue was carried upto the appellate authority unsuccessfully.
The learned advocate for the petitioner submits that there is an issue of violation of principles of natural justice. The petitioner could not be heard and therefore, court should direct consideration of the petitioner’s grievance assailing legitimacy of the demand of service tax saddled upon the petitioner in the proceeding.
This Court finds that the present writ petition is filed nearly two years after passing of the order passed by the appellate authority. This Court has gone through the order passed by the appellate authority dated 25.06.2024. 2
It is further apparent from the order that the appellate authority excluded the period which in terms of order passed by the Hon’ble Apex Court was liable to be excluded in view of the Covid-19 Pandemic, while considering the period of limitation. Still it was found that the appeal was filed after a delay of 351 days.
This Court is also informed that an appeal is pending before the Hon’ble Customs, Excise and Service Tax Appellate Tribunal, Kolkata in Appeal No.ST/75960/2024. 6. As per the relevant provision, the petitioner had a period of two months for filing the appeal, condonable by a maximum period of one month. The petitioner therefore had full 90 days for preferring the appeal before the Commissioner Appeal which he failed to do. There being no discretion for extension of time thereafter, the appeal was rejected. No provision is pointed to this Court whereby and whereunder the Commissioner Appeal would be having any discretion to condone the limitation beyond 90 days.
This Court therefore finds no infirmity in the decision dated 25.06.2024, passed by the Commissioner of CGST & CX, Appeal-II, Commissionerate, Kolkata, rejecting the appeal as barred by limitation.
The writ petition is therefore devoid of any merit. The same is dismissed.
All parties are directed to act on a server copy of this order duly downloaded from the official website of this Court.
( Madhuresh Prasad, J. )
Reproduced from the public record of the Calcutta High Court. Verify against the court's own copy before relying on it. Income tax judgments are on bharattax.net.