Bombay High Court
M/S. Agrawal Construction, ... vs Commissioner Of Central Excise ... on 2 December, 2014
Bench: A.B. Chaudhari
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
Writ Petition No.2906/2014
M/s. Agrawal Construction,
a proprietary concern, thr. its
Proprietor Shri Keshav Agrawal,
having its office at 93, Mall Road,
Cantonment Area, Kamptee, Dist. Nagpur....PETITIONER
...V E R S U S...
1. Commissioner of Central Excise &
Service Tax, Civil Lines, P.B. No.81,
Telangkhedi Road, Nagpur.
2. The Commissioner of Central Excise
(Appeals), Civil Lines, P.B. No. 81,
Telangkhedi Road, Nagpur. ...RESPONDENTS
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Mr. S. V. Bhutada, Advocate for petitioner.
Mr. Firdos Mirza, Advocate for respondent nos. 1 & 2.
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CORAM:- A. B. CHAUDHARI &
P. R. BORA, JJ.
DATE :-
02.12.2014
ORAL JUDGMENT (Per : A. B. Chaudhari, J.)
1. Rule. Rule returnable forthwith. Heard finally by
consent of the parties.
2. Following is the question of law, which is required to
be answered in the present matter:
"Whether in the wake of outer limit of period of
three months, giving right to the appellant for filing
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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?
Answer : No."
Section 85 (3A) of the Act reads thus:
85. Appeals to the Commissioner of Central Excise
(Appeals):
(1) to (3) .....
(3A) An appeal shall be presented within two
months from the date of receipt of the decision or
order of such adjudicating authority, made on and
after the Finance Bill, 2012 receives the assent of
the President, relating to service tax, interest or
penalty under this Chapter:
PROVIDED that the Commissioner of Central Excise
(Appeals) may, if he is satisfied that the appellant
was prevented by sufficient cause from presenting
the appeal within the aforesaid period of two
months, allow it to be presented within a further
period of one month."
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
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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 months 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.
4. We are fortified, in our view by Three Judges Bench
judgment of the apex Court in Commissioner of Customs and
Central Excise..vs.. Hongo India Pvt. Ltd. & anr.; (2009) 5 SCC
791, in particular para 19 thereof, which reads thus:
"19. The said decision in Popular Construction Co.
case arose under the Arbitration and Conciliation
Act, 1996. The question which arose for
consideration in that case was whether provisions of
Section 5 of the Limitation Act, 1963 are applicable
to an application challenging an award under
Section 34 of the Arbitration and Conciliation Act,
1996. In that case, award was filed by the
appellant-Union of India in the Bombay High Court
on 29.3.1999. The appellant filed an application
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challenging the award on 19.4.1999 under Section
30 read with Section 16 of the Arbitration Act,
1940. Subsequently, the application was amended
by inserting the words "Arbitration and Conciliation
Act, 1996" in place of "Arbitration Act, 1940". The
application was dismissed by the learned single
Judge on 26.10.1999 on the ground that it was
barred by limitation under Section 34 of the 1996
Act. The Division Bench rejected the appeal and
upheld the findings of the learned single Judge. The
said order was challenged in this Court."
5. As a sequel, we hold 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.
6. In the result, we pass the following order.
ORDER
Writ Petition No. 2906/2014 is rejected.
Rule discharged. No order as to costs.
JUDGE JUDGE
kahale
