ST - Appellant's son as MD receiving o-in-o passed on 07/02/2009 - son committing suicide on 23/06/2009 - appeal by appellant who is father of deceased son & partner in firm on 05/10/2009 - knowledge of OIO can be attributed to appellant - appeal time barred: HC
By TIOL News ServiceDHARWAD, APRIL 30, 2013: A SCN dated 02.01.2008 demanding service tax was issued to the partnership firm M/s Sangameshwar Trading Company.
The Managing Partner replied to the SCN through his counsel. Thereafter, an order dated 27/01/2009 came to be passed by the Jt. Commr., C.Ex., Belgaum confirming the demand and imposing penalty and interest.
Against this order, an appeal came to be filed on the 5 th October, 2009 before the Commissioner (A) and this was dismissed on 27/01/2010 on the ground that the same is time barred and that the Commissioner(A) did not have any power to condone the delay of more than three months.
The appeal before the CESTAT was also dismissed by upholding the order of the lower appellate authority.
The appellant is before the High Court and the point for consideration is -
“Whether in the facts and circumstances of the case, the Tribunal was justified in holding that there was delay in filing the appeal before the Commissioner of Central Excise (Appeals), Mangalore?”
Inasmuch it is submitted by the appellant that the appellant's son was a Managing Partner who had received the order of the adjudicating authority on 07/02/2009 and that he had committed suicide on 23/06/2009. It is further submitted that the appellant came to know about the o-in-o only on 22/09/2009 and, thereafter, he preferred an appeal before the Commissioner on 5th October, 2009; that since the appeal was filed within time from the date of knowledge, the order passed by the lower appellate authority and Tribunal in holding the appeal as time barred is not justified.
The Revenue submitted –
+ that under Section 85 an appeal can be preferred within three months from the date of receipt of decision or order.
+ In the present case, the order has been received by the son of the appellant who was the Managing Partner, on 07.02.2009.
+ The appellant's son had enough time to prefer the appeal. Appellant's son has participated in the proceedings. The knowledge can be attributed to the appellant also.
+ Therefore, the appeal was not in time and the Tribunal as well as the Commissioner (A) were justified in dismissing the appeal.
The High Court extracted the provisions of section 85 of the FA, 1994 and observed -
"11. It is clear, Section 85 provides that any person aggrieved by any decision or order passed by an adjudicating authority can prefer an appeal within three months. Thereafter, if the Commissioner is satisfied that the appellant was prevented by sufficient cause from preferring the appeal, the Commissioner can allow the appeal to be preferred within further period of three months and not beyond that.
12. In the present case, the appeal has been preferred on 05.10.2009. The order has been passed by the adjudicating authority on 27.01.2009. Copy of the order has been received by the appellant's son who was the Managing Partner on 07.02.2009. Appellant's son has died on 23.06.2009. There was enough time to prefer-the appeal. The appellant's son has participated in the proceedings as the Managing Partner of the firm. The knowledge can be attributed to the appellant also who is a partner. Therefore, it cannot be said the appellant was not aware of the order. The explanation offered is unacceptable. In the circumstances, in our considered view, the Commissioner of Central Excise (Appeals) was justified in dismissing the appeal as barred by time. The appellate Tribunal has rightly confirmed it. The appeal should have been preferred within three months. The order has been received on 07.02.2009. The appeal has been preferred on 05.10.2009. The appeal was clearly barred by time. The Commissioner can condone the delay of three months and not beyond that. Therefore, the Commissioner of Central Excise (Appeals) was justified, in dismissing the appeal as barred by time. It is rightly confirmed by the appellate Tribunal. Therefore, the impugned order does not call for any interference. There is no merit in this appeal and therefore, it is liable to be dismissed."
The appeal was dismissed.
In passing: “If the law supposes that,” said Mr. Bumble,…“the law is a ass-a idiot. If that's the eye of the law, the law is a bachelor; and the worst I wish the law is that his eye may be opened by experience-by experience.” CHARLES DICKENS, Oliver Twist, chapter 51, p. 489 (1970).
(See 2013-TIOL-340-HC-KAR-ST)
