By TIOL News Service

MUMBAI, DEC 22, 2014: THE question of law before the High Court is -

"Whether in the wake of outer limit of period of three months, giving right to the appellant for filing appeal under section 85 (3A) of the Service Tax - Chapter V of Finance Act, 1994, the appellate court would be empowered to entertain an appeal or condone the delay beyond the outer limit of three months or 90 days, provided by the said Act?

The High Court extracted the provision in question and observed -

“3. Perusal of the above provision, in particular sub section (3A) and its proviso, clearly shows that the period of two months is provided for filing of appeal before the appellate authority. However, the appellate authority, if satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the said period of two months, has power to allow filing of appeal within a further period of one month. Thus, total period that is allowed by this provision is or outer limit for preferring appeal is three months i.e. two months as a matter of right and next one month for sufficient cause. It is clearly seen that beyond the said outer limit of three months, there is no enabling provision for the appellate authority to either entertain the appeal or condone the delay. In our opinion, that is the plain reading of the provision.”

The High Court noted that its views are fortified by the Three Judges Bench judgment of the apex Court in Commissioner of Customs and Central Excise vs. Hongo India Pvt. Ltd. & anr.; 2008-TIOL-233-SC-CX, in particular para 19 thereof, and thereafter concluded that the appellate authority under section 85 (3A) of the Act does not have authority to condone the delay beyond 90 days, that being the outer limit as per the said provision.

The Writ Petition was rejected.

(See 2014-TIOL-2310-HC-MUM-ST)