M/S Hemant Singh Bais vs. The Asst. Commissioner CGST

Held

The Court held that the writ court has jurisdiction to entertain the petition as the dismissal of the appeal was on the ground of limitation, which is a question of law. However, regarding the second issue, the Court found that the Commissioner (Appeals) correctly dismissed the appeal on the ground of limitation. Citing Section 85 of the Finance Act, 1994, and the Supreme Court's decision in Singh Enterprises vs. CCE, the Court clarified that the Commissioner (Appeals) has the power to condone delay only up to a further period of 30 days beyond the initial 60 days (total 90 days). In this case, the appeal was filed after a delay of approximately one and a half years, which far exceeded the permissible period for condonation. Therefore, the Commissioner (Appeals) lacked the power to condone such a significant delay, and no illegality was committed in dismissing the appeal. The Court found the impugned order to be just and proper and did not find any ground for interference.

Facts

The petitioner, M/s Hemant Singh Bais, a government contractor, challenged an order dated 16.07.2021 passed by the Commissioner (Appeals), CGST and Central Excise, which dismissed his appeal on grounds of limitation. The petitioner contended that the order-in-original dated 26.09.2019, which determined service tax demands and penalties, was never served upon him, violating Section 37C of the Central Excise Act, 1944. He claimed service was made to one Shivpal Singh, who did not inform him. The department asserted service was effected on 07.10.2019. The petitioner filed an appeal with the Commissioner (Appeals) after learning of the order on 04.12.2020, but it was dismissed as being filed approximately one and a half years after the order-in-original was passed.

Key Issues

1. Whether the writ court has jurisdiction to entertain the petition despite the availability of an alternative remedy to approach the Customs, Excise and Service Tax Appellate Tribunal, in light of the appeal being dismissed on the ground of limitation, which is a question of law? (Petitioner's contention: Yes, citing Whirlpool Corpn. vs. Registrar of Trade Marks, as the dismissal on limitation is a question of law amenable to writ jurisdiction. Revenue's contention: Not recorded.) 2. Whether the Commissioner (Appeals) had the power to condone the delay in filing the appeal beyond the statutory period prescribed under Section 85 of the Finance Act, 1994, considering the appeal was filed approximately one and a half years after the order-in-original? (Petitioner's contention: The order-in-original was not properly served, and upon learning of it, he approached the authorities. Revenue's contention: The appeal was filed beyond the prescribed limitation period, and the Commissioner (Appeals) correctly dismissed it on this ground.)