ST - Chance taking petitioner - There is tendency of those persons who are liable to make payment of tax interest penalty to take chance before Court - Vigilant petitioner should have filed appeal within limitation period: HC
By TIOL News Service
RANCHI, AUG 28, 2015: IN present matter concerning Service Tax an o-in-o was passed by the Additional Commissioner on 31.01.2013.The period of limitation u/s 85(3A) of the FA, 1994 is sixty days and delay could be condoned by Commissioner (Appeals) if there are reasonable reasons. However, the Commissioner (Appeals) has no power, jurisdiction and authority to condone the delay beyond thirty days.
Be that as it may, a writ petition (Tax) was preferred by the petitioner before the High Court on 17th December 2013 but the same was dismissed vide order dated 25th March 2014.
Thereafter, appeals were preferred by the petitioners before the Commissioner(A) against the order-in-original claiming benefit of Section 14 of the Limitation Act of 1963, to exclude the time consumed in disposal of the writ petition before the Court in computation of the delay of approximately fifteen months.
The Commissioner(A) vide his order dated 17.10.2014 dismissed the appeal mainly on the ground that the appeals had been preferred beyond the period of condonable delay.
The petitioner is again before the High Court and submits that Section 14(2) of the Limitation Act 1963 is applicable for condonation of delay by the Commissioner (Appeals) and which aspect had not been properly appreciated by the Commissioner (Appeals) and, therefore, the delay may be condoned and the matter may be remanded to the Commissioner (Appeals) for its decision on merits.
The High Court observed that there was no reason to entertain the Writ Petition on account of the following -
+ In view of the decision of the apex court in the case of Singh Enterprises - 2007-TIOL-231-SC-CX and Section 85(3A) of the Finance Act, 1994 no error has been committed by the Commissioner (Appeals) in not condoning the delay because it was beyond the period of condonable delay.
+ Looking to Section 14 of the Limitation Act 1963 the said Section is also not applicable in the facts of the present case because the writ petition (Tax) No. 7713 of 2013 was preferred before this Court on 17th December, 2013 which was dismissed vide order dated 25th March, 2014. Thus, writ petition which was also preferred after the limitation period was over for preferring appeal U/s 85(3A) of the Finance Act, 1994. The benefit of section 14 of the Limitation Act cannot be extended to this petitioner.
+ Looking to the order in original dated 31st December, 2013 passed by Additional Commissioner, Central Excise the demand notice issued upon this petitioner was affirmed, without any ambiguity. Order for interest was also passed and order for penalty was also imposed Under Section 77 of the Finance Act, 1994. Thus appeal should have been preferred by petitioner as provided in the Finance Act, 1994.
+ There is tendency of those persons who are liable to make payment of the tax+interest+penalty to take a chance before this Court. This "chance taking petitioner" has filed a writ petition before this Court at his own peril and risk because some times it takes time for final adjudication of the writ and on another hand the period of limitation has already been started. It ought to be kept in mind by this type of "chance taking petitioner" that they should simultaneously prefer statutory appeals also so that whenever there are such type of clauses that limitation cannot be condoned beyond the period of thirty days the appeal may not be dismissed for want of condonation of delay. The petitioner is lethargic, but, certainly not an ignorant person and is knowing all fine niceties of law. Vigilant petitioner should have filed their appeal within the limitation period or at least within condonable delay period.
+ There is one more reason not to give benefit of Section 14 of the Limitation Act, 1963 to this petitioner as because Section 14 of the Limitation Act, 1963 is applicable only when the proceeding is bonafide in the court without jurisdiction.The provision of Section 14 has been enacted only for the reason when there is total lack of jurisdiction the benefit can be given to the party who is preferring appeal at the slightly belated stage.
The High Court while concluding that no error has been committed by the Commissioner (A) in passing the order dated 17.10.2014 expressed itsfull agreement with the ratio decidendi propounded by the Bombay High Court in the case of Flemingo (Duty Free Shop) Pvt. Ltd. - 2014-TIOL-2436-HC-MUM-CUS wherein the High Court had in a similar situation held that the Petitioner cannot be allowed to take advantage of its own wrong and get over the period of limitation with the aid of sub-section (2) of section 14 of the Limitation Act, 1963 .
The writ petition was dismissed.
(See 2015-TIOL-1987-HC-JHARKHAND-ST)
