Chattisgarh High Court
Nandan Steels And Power Limited vs State Of Chhattisgarh on 10 August, 2022
1
AFR
HIGH COURT OF CHHATTISGARH BILASPUR
WA No. 104 of 2021
Nandan Steels And Power Limited A Company Incorporated
Under The Companies Act, 1956, Having Its Office At Sondra,
Behsar Road, Siltara Industrial Area, Block Dharsiwa, District
Raipur, Chhattisgarh, Through Its Director Manish Kumar
Agrawal, Son of Subhash Kumar Agrawal, Aged About 51 Years.
---- Appellant
Versus
1. State of Chhattisgarh Through The Secretary, Department
of Commercial Tax, Government of Chhattisgarh,
Mantralaya, Mahanadi Bhawan, Nawa Raipur, Atal Nagar,
Naya Raipur, District Raipur (Chhattisgarh)
2. The Commissioner State Goods And Service Tax
Department, Civil Lines, Raipur (Chhattisgarh)
3. The Joint Commissioner (Appeals) State Goods And
Service Tax, Civil Lines, Raipur (Chhattisgarh)
4. The Adjudicating Authority (Assistant Commissioner) State
Goods And Service Tax, Civil Lines, Raipur (Chhattisgarh)
---- Respondents
For Appellant : Mr. Prateek Pandey, Advocate
For Respondents : Mr. Vikram Sharma, Deputy Govt. Advocate
Date of hearing : 19.07.2022
Date of Judgment : 10.08.2022
Hon'ble Shri Arup Kumar Goswami, Chief Justice
Hon'ble Shri Parth Prateem Sahu, Judge
C A V Judgment
Per Arup Kumar Goswami, Chief Justice
Heard Mr. Prateek Pandey, learned counsel for the appellant.
Also heard Mr. Vikram Sharma, learned Deputy Government
Advocate, appearing for the respondents.
2. This appeal is presented against an order dated 27.10.2020
passed by the learned Single Judge in Writ Petition (T) No.97 of 2020,
dismissing the writ petition.
3. The appellant is a Private Limited Company incorporated
under the provisions of the Companies Act, 1956 and engaged in the
business of manufacturing iron and steel products. The appellant had
filed TRAN-1 to claim CGST input credit of Rs.30,74,436/-. However,
the Adjudicating Authority by an order dated 26.06.2019 had
disallowed the CGST input credit of Rs.25,33,950/-.
4. Against the aforesaid order, the appellant preferred an appeal
on 16.12.2019 under Section 107 (1) of the Chhattisgarh Goods and
Service Tax Act, 2017 (for short, 'CGST Act') before respondent No.3
and had deposited 10% of the amount in dispute.
5. The appeal was rejected by an order dated 20.12.2019 passed
by respondent No.3 on the ground of the same being barred by
limitation.
6. Writ petition was filed assailing the said order dated
20.12.2019 passed by respondent No.3 with a further prayer to direct
the respondent No.3 to hear the appeal preferred by the appellant on
merits.
7. It will be appropriate to extract relevant provisions of Section
107 of the CGST Act :
"107. Appeals to Appellate Authority.-(1) Any
person aggrieved by any decision or order passed
under this Act or the State Goods and Services
Tax Act or the Union Territory Goods and
Services Tax Act by an adjudicating authority may
appeal to such Appellate Authority as may be
prescribed within three months from the date on
which the said decision or order is communicated
to such person.
(2) The Commissioner may, on his own motion, or
upon request from the Commissioner of State tax
or the Commissioner of Union territory tax, call for
and examine the record of any proceedings in
which an adjudicating authority has passed any
decision or order under this Act or the State
Goods and Services Tax Act or the Union
Territory Goods and Services Tax Act, for the
purpose of satisfying himself as to the legality or
propriety of the said decision or order and may, by
order, direct any officer subordinate to him to
apply to the Appellate Authority within six months
from the date of communication of the said
decision or order for the determination of such
points arising out of the said decision or order as
may be specified by the Commissioner in his
order.
(3) Where, in pursuance of an order under sub-
section (2), the authorised officer makes an
application to the Appellate Authority, such
application shall be dealt with by the Appellate
Authority as if it were an appeal made against the
decision or order of the adjudicating authority and
such authorised officer were an appellant and the
provisions of this Act relating to appeals shall
apply to such application.
(4) The Appellate Authority may, if he is satisfied
that the appellant was prevented by sufficient
cause from presenting the appeal within the
aforesaid period of three months or six months, as
the case may be, allow it to be presented within a
further period of one month.
x x x
x x x "
8. The learned Single Judge held that in terms of Sections 107
(1) and 107 (4) of the CGST Act, the Appellate Authority has no power
to entertain an appeal beyond the period of one month as stipulated in
Section 107 (4) and the Appellate Authority becomes functus officio. It
is also held that there is no power to entertain the application for
condonation of delay beyond the permissible period provided under
the CGST Act.
9. Mr. Prateek Pandey, learned counsel for the appellant submits
that delay that had occasioned was on account of the fact that the
Chartered Accountant, who was authorised by the appellant to prefer
an appeal, had suffered serious ailment, and therefore, an application
for condonation of delay had been filed. In such circumstance,
respondent No. 3 ought to have considered the application for
condonation of delay. He has drawn our attention to Section 29(2) of
the Limitation Act, 1963 (for short, 'Limitation Act') and submits that
there being no express exclusion of provisions contained in Sections 4
to 24 of Limitation Act under the CGST Act, respondent No.3 had
power to condone the delay on satisfaction being arrived at that there
was sufficient cause for the delay.
10. Mr. Vikram Sharma, learned Deputy Government Advocate,
appearing for the respondents, submits that the CGST Act is a special
law and same is a complete code by itself and the relevant provisions
make it abundant clear that the provisions of Limitation Act are
necessarily excluded, and therefore, the submission of Mr. Pandey
that there is power to condone delay even beyond the period
prescribed is entirely misplaced. He relies on the judgments of the
Hon'ble Supreme Court in the cases of Patel Brothers v. State of
Assam, reported in (2017) 2 SCC 350, P. Radha Bai and Others v. P.
Ashok Kumar and Another, reported in (2019) 13 SCC 445 and Singh
Enterprises v. Commissioner of Central Excise, Jamshedpur and
Others, reported in (2008) 3 SCC 70.
11. We have considered the submissions of learned counsel for
the parties and have perused the materials on record.
12. It will be appropriate to take note of Section 29(2) of the
Limitation Act, which reads as follows:
"29(2) Where any special or local law prescribes
for any suit, appeal or application a period of
limitation different from the period prescribed by
the Schedule, the provisions of Section 3 shall
apply as if such period were the period prescribed
by the Schedule and for the purpose of
determining any period of limitation prescribed for
any suit, appeal or application by any special or
local law, the provisions contained in Sections 4 to
24 (inclusive) shall apply only insofar as, and to the
extent to which, they are not expressly excluded by
such special or local law."
13. A reading of Section 29(2) would go to show that the section
is divided into two parts, manifested by the expression "and". The
first part stipulates that the limitation period prescribed by the
special law or local law will prevail over the limitation period
prescribed in the Schedule to the Limitation Act. The second part
of Section 29(2) of the Limitation Act ordains that the Sections 4 to
24 of the Limitation Act will apply for determining the period of
limitation "only insofar as, and to the extent which, they are not
expressly excluded by such special or local law."(emphasis given)
14. CGST Act is a "special law" which prescribes a specific
period of limitation in Sections 107(1) and 107(4), and therefore,
the provisions of CGST Act will apply. It is also to be noted that
there is no provision under the Limitation Act dealing with the
subject matter of appeal under the CGST Act.
15. In the case of Hukumdev Narain Yadav v. Lalit Narain
Mishra, reported in (1974) 2 SCC 133, the Hon'ble Supreme Court
had observed that in the context of a special law it will be
necessary to examine whether the scheme of special law and the
nature of the remedy provided therein are such that the
Legislature intended it to be a complete code by itself which alone
should govern the various matters provided by it and if on an
examination of the relevant provisions it is clear that the
provisions of the Limitation Act are necessarily excluded, then the
benefits conferred therein cannot be called in aid to supplement
the provisions of the Act in question. Accordingly, it was held that
even in a case where the special law does not exclude the
provisions of Sections 4 to 24 of the Limitation Act by an express
reference, it would nonetheless be open to the Court to examine
whether and to what extent the nature of those provisions or the
nature of subject matter and scheme of the special law exclude
their operation.
16. The aforesaid principle was reiterated by the Hon'ble
Supreme Court in the case of Commissioner of Customs and
Central Excise v. Hongo India Private Limited & Another , reported
in (2009) 5 SCC 791. At paragraph 35, it was observed as follows:
"It was contended before us that the words
"expressly excluded" would mean that there must
be an express reference made in the special or
local law to the specific provisions of the
Limitation Act of which the operation is to be
excluded. In this regard, we have to see the
scheme of the special law which here in this case
is the Central Excise Act. The nature of the
remedy provided therein is such that the
legislature intended it to be a complete code by
itself which alone should govern the several
matters provided by it. If, on an examination of the
relevant provisions, it is clear that the provisions
of the Limitation Act are necessarily excluded,
then the benefits conferred therein cannot be
called in aid to supplement the provisions of the
Act. In our considered view, that even in a case
where the special law does not exclude the
provisions of Sections 4 to 24 of the Limitation Act
by an express reference, it would nonetheless be
open to the court to examine whether and to what
extent, the nature of those provisions or the
nature of the subject-matter and scheme of the
special law exclude their operation. In other
words, the applicability of the provisions of the
Limitation Act, therefore, is to be judged not from
the terms of the Limitation Act but by the
provisions of the Central Excise Act relating to
filing of reference application to the High Court."
17. The principle enunciated was reiterated by the Hon'ble
Supreme Court in the cases of Union of India v. Popular
Construction Co., reported in (2001) 8 SCC 470, Chhattisgarh
State Electricity Board v. Central Electricity Regulatory
Commission & Others, reported in (2010) 5 SCC 23, Gopal
Sardar v. Karuna Sardar, reported in (2004) 4 SCC 252 and P.
Radha Bai & Others (supra). Therefore, the submission of Mr.
Pandey that in view of there being no express provision in CGST
Act excluding applicability of the Limitation Act, necessarily it has
to be held that the Limitation Act applies, is without any merit.
However, it will be necessary for us to examine as to whether the
Legislature intended CGST Act to be a complete code by itself,
which alone should govern the matters falling within the ambit of
the CGST Act.
18. In the case of Hongo India (supra), the Hon'ble Supreme
Court had occasion to consider Section 35-H(1) of the Central
Excise Act, 1944, for short, C.E. Act. The question that had fallen
for consideration before the Hon'ble Supreme Court was whether
the High Court has power to condone the delay in presentation of
the reference application under unamended Section 35-H(1) of
the C.E. Act beyond the prescribed period by applying Section 5
of the Limitation Act. Section 35-H(1) of the C.E. Act as
considered by the Hon'ble Supreme Court, reads as follows:
"35H. Application to High Court - (1) The
Commissioner of Central Excise or the other party
may, within one hundred and eighty days of the
date upon which he is served with notice of an
order under Section 35-C passed before the 1 st
day of July, 2003 (not being an order relating,
among other things, to the determination of any
question having a relation to the rate of duty of
excise or to the value of goods for purposes of
assessment), by application in the prescribed
form, accompanied, where the application is made
by the other party, by a fee of two hundred
rupees, apply to the High Court to direct the
Appellate Tribunal to refer to the High Court any
question of law arising from such order of the
Tribunal."
19. Unamended Section 35-H of the C.E. Act dealt with
reference application to the High Court. Under sub-section (1)
thereof, such reference application could be preferred within a
period of 180 days of the date upon which the aggrieved party is
served with notice of an order under Section 35-C of the C.E. Act.
There was no provision to extend the period of limitation for filing
the application to the High Court beyond the said period and to
condone the delay. Pertinently, under the scheme of the C.E. Act
itself, in case of appeal to the Commissioner under Section 35 of
the Act, which should be filed within 60 days, there was a specific
provision for condonation of delay upto 30 days if sufficient cause
is shown. Likewise, appeal to the Appellate Tribunal could be filed
within 90 days under Section 35-B thereof and sub-section (5) of
Section 35-B gave power to the Appellate Tribunal to condone the
delay irrespective of the number of days, if sufficient cause is
shown. Further, Section 35-EE provided 90 days time for filing
revision by the Central Government and proviso thereto
empowers the revisional authority to condone the delay for a
further period of 90 days. However, when it came to making
reference to the High Court under Section 35-G of the Act, the
provision only prescribed the limitation period of 180 days with no
further clause empowering the High Court to condone the delay
beyond the said period of 180 days.
20. On due consideration of the scheme of the C.E. Act, the
Hon'ble Supreme Court concluded that the time-limit prescribed
under Section 35-H(1) to make a reference to the High Court is
absolute and unextendable by a Court under Section 5 of the
Limitation Act. It was also observed that it is the duty of the Court
to respect the legislative intent and by giving liberal interpretation,
limitation cannot be extended by invoking the provisions of
Section 5 of the Limitation Act.
21. In Patel Brothers (supra), the question of law which had
fallen for determination was as to whether provisions of Section 5
of the Limitation Act are applicable in respect of the revision
petition filed in the High Court under Section 81 of the Assam
Value Added Tax Act, 2003 (for short, 'the VAT Act'). Section 81
of the VAT Act, as considered by the Hon'ble Supreme Court,
reads as follows:
"81. Revision to High Court : (1) Any dealer or
other person, who is dissatisfied with the decision
of the Appellate Tribunal, or the Commissioner
may, within sixty days after being notified of the
decision of the Appellate Tribunal, file a revision to
the High Court, and the dealer or other person so
appealing shall serve a copy of the notice of
revision on the respondents to the proceedings."
22. It was held by the High Court that since only Sections 4 and
12 of the Limitation Act are made specifically applicable, by
necessary implication, Section 5 of the Limitation Act stood
excluded. The Hon'ble Supreme Court held that the approach to
be adopted by the High Court in such cases is to examine the
provisions of special law to arrive at a conclusion as to whether
there was legislative intent to exclude the operation of Limitation
Act. As Section 84 of the VAT Act made only Sections 4 and 12 of
the Limitation Act applicable to the proceedings under the VAT
Act, it was held by the Hon'ble Supreme Court that the apparent
legislative intent, which can be clearly evinced, is to exclude other
provisions, including Section 5 of the Limitation Act. It was
observed that if the intention of the legislature was to make
Section 5, or for that matter, other provisions of the Limitation Act
applicable to the proceedings under the VAT Act, there was no
necessity to make specific provision like Section 84 thereby
making only Sections 4 and 12 of the Limitation Act applicable to
such proceedings, inasmuch as these two Sections would also
have become applicable by virtue of Section 29(2) of the
Limitation Act.
23. In P. Radha Bai (Supra), the inquiry conducted by the
Hon'ble Supreme Court was whether the text or the scheme and
object of the Arbitration and Conciliation Act, 1996 (for short, the
Act of 1996) excludes the application of Section 17 of the
Limitation Act while determining the limitation period as prescribed
under Section 34(3) of the Act of 1996. Section 34(3) of the Act of
1996, reads as follows :
"34. Application for setting aside arbitral award-
(1) -(2) * * *
(3) An application for setting aside may not be
made after three months have elapsed from the
date on which the party making that application
had received the arbitral award or, if a request had
been made under section 33, from the date on
which that request had been disposed of by the
Arbitral Tribunal:
Provided that if the Court is satisfied that the
applicant was prevented by sufficient cause from
making the application within the said period of
three months it may entertain the application
within a further period of thirty days, but not
thereafter."
24. The Hon'ble Supreme Court observed that the limitation
provision in Section 34(3) of the Act of 1996 also provides for
condonation of delay. Unlike Section 5 of Limitation Act, the delay
can only be condoned for 30 days on showing sufficient cause.
The crucial phrase "but not thereafter" reveals the legislative intent
to fix an outer boundary period for challenging an Award.
25. In that view of the matter and also taking note of the fact that
if Section 17 of the Limitation Act were to be applied to determine
the limitation period under Section 34(3) of the Act of 1996, it
would have certain unwarranted inconsistencies, it was held that
there was an express exclusion of Section 17 of the Limitation
Act.
26. In Singh Enterprises (supra), Section 35 of the C.E. Act had
fallen for consideration. Paragraphs 6 and 7 read as follows:
"6. At this juncture, it is relevant to take note of
Section 35 of the Act which reads as follows:
"35. Appeals To Commissioner (Appeals.)
(1) Any person aggrieved by any decision or
order passed under this Act by a Central
Excise Officer, lower in rank than a
Commissioner of Central Excise, may appeal
to the Commissioner of Central Excise
(Appeals) [hereafter in this Chapter referred
to as the Commissioner (Appeals)] within
sixty days from the date of the
communication to him of such decision or
order :
Provided that the Commissioner (Appeals)
may, if he is satisfied that the appellant was
prevented by sufficient cause from presenting
the appeal within the aforesaid period of sixty
days, allow it to be presented within a further
period of thirty days.
(2) Every appeal under this section shall be in
the prescribed form and shall be verified in
the prescribed manner.
7. It is to be noted that the periods sixty days and
thirty days have been substituted for within three
months and three months by Act 14 of 2001, with
effect from 11.5.2001.
27. It was observed by the Hon'ble Supreme Court that the
Commissioner of Central Excise (Appeals) as also the Tribunal
being creatures of Statute are vested with jurisdiction to condone
the delay beyond the permissible period provided under the
Statute. The period upto which the prayer for condonation can be
accepted is statutorily provided. The first proviso to Section 35
makes the position clear that the appeal has to be preferred within
three months from the date of communication to him of the
decision or order. However, if the Commissioner is satisfied that
the appellant was prevented by sufficient cause from presenting
the appeal within the aforesaid period of 60 days, he can allow it
to be presented within a further period of 30 days. In other words,
this clearly shows that the appeal has to be filed within 60 days
but in terms of the proviso further 30 days time can be granted by
the appellate authority to entertain the appeal. The proviso to sub-
section (1) of Section 35 makes the position crystal clear that the
appellate authority has no power to allow the appeal to be
presented beyond the period of 30 days. The language used
makes the position clear that the legislature intended the appellate
authority to entertain the appeal by condoning delay only upto 30
days after the expiry of 60 days which is the normal period for
preferring appeal. Therefore, there is complete exclusion of
Section 5 of the Limitation Act."
29. In the case of Assistant Commissioner (CT) LTU, Kakinada
& Others v. Glaxo Smith Kline Consumer Health Care Limited ,
reported in AIR 2020 SC 2819, Section 31 of the Andhra Pradesh
Value Added Tax Act, 2005 (for short, 'AP VAT Act') had fallen for
consideration. The said provision reads as follows:
"Section 31. (1) Any VAT dealer or TOT dealer or
any another dealer objecting to any order passed
or proceeding recorded by any authority under the
provisions of the Act other than an order passed
or proceeding recorded by an Additional
Commissioner or Joint Commissioner or Deputy
Commissioner, may within thirty days from the
date on which the order or proceeding was served
on him, appeal to such authority as may be
prescribed:
Provided that the appellate authority may within a
further period of thirty days admit the appeal
preferred after a period of thirty days if he is
satisfied that the VAT dealer or TOT dealer or any
other dealer had sufficient cause for not preferring
the appeal within that period:
Provided further that an appeal so preferred shall
not be admitted by the appellate authority
concerned unless the dealer produces the proof of
payment of tax, penalty, interest or any other
amount admitted to be due, or of such,
installments as have been granted, and the proof
of payment of twelve and half percent of the
difference of the tax, penalty, interest or any other
amount, assessed by the authority prescribed and
the tax, penalty, interest or any other amount
admitted by the appellant, for the relevant tax
period, in respect of which the appeal is preferred.
XXX XXX XXX"
30. It was observed by the Hon'ble Supreme Court that it is
evident that the statutory appeal was required to be filed within 30
days from the date on which the order or proceeding was served
on the assessee. If the appeal is filed after expiry of prescribed
period, the appellate authority is empowered to condone the delay
in filing the appeal, only if it is filed within a further period of not
exceeding 30 days and sufficient cause for not preferring the
appeal within prescribed time is made out. The appellate authority
is not empowered to condone delay beyond the aggregate period
of 60 days from the date of order or service of proceeding on the
assessee, as the case may be. It is to be noted, at this juncture,
that in the aforesaid case, admittedly, the appeal was filed beyond
the total 60 days' period specified in terms of Section 31 of the AP
VAT Act. The Hon'ble Supreme Court observed that the AP VAT
Act is a special legislation within the meaning of Section 29(2) of
the Limitation Act and, therefore, the prescription with regard to
the limitation has binding effect and the same has to be followed
regard being had to its mandatory nature. It was also explained
that the prescription of limitation in the case at hand, when the
statute commands that the Court may condone the further delay
not beyond 60 days, it would come within the ambit and sweep of
the provisions and policy of legislation. It was also observed that
there is a statutory command by the legislation as regards
limitation and there is the postulate that delay can be condoned
for a further period not exceeding sixty days, needless to say, it is
based on certain underlined, fundamental, general issues of
public policy. It is in that context, the Hon'ble Supreme Court
observed that if the writ petitioner choses to approach the High
Court after expiry of the maximum limitation period of 60 days
prescribed under Section 31 of the AP VAT Act, the High Court
cannot disregard the statutory period for redressal of the
grievance and entertain the writ petition of such a party as a
matter of course. The fact that High Court has wide powers, does
not mean that it can issue a writ which may be inconsistent with
the legislative intent regarding the dispensation explicitly
prescribed under Section 31 of the AP VAT Act as that would
render the legislative scheme and intention behind the stated
provision otiose.
31. In the context of the present case, it would also be relevant
to take note of Sections 117(1) and (2) of the CGST Act, which
read as follows:
"(1) Any person aggrieved by any order passed
by the State Bench or Area Benches of the
Appellate Tribunal may file an appeal to the High
Court and the High Court may admit such
appeal, if it is satisfied that the case involves a
substantial question of law.
(2) An appeal under sub-section (1) shall be filed
within a period of one hundred and eighty days
from the date on which the order appealed
against is received by the aggrieved person and
it shall be in such form, verified in such manner
as may be prescribed:
Provided that the High Court may entertain an
appeal after the expiry of the said period if it is
satisfied that there was sufficient cause for not
filing it within such period."
32. A perusal of the above Sections go to show that in respect of
an appeal to the High Court, the Legislature has not provided any
specific time limit for entertainment of an appeal after expiry of the
period of limitation if it is satisfied that there was sufficient cause
for not filing the same within the period of limitation. In respect of
an appeal under Section 107(1) of CGST Act, it is provided that
the appeal may be filed within three months from the date on
which the decision or order is communicated to such person.
Section 107(4) of CGST Act lays down that on sufficient cause
being shown, the Appellate Authority may allow the appeal to be
presented within a further period of one month. The same would
go to show that the legislative intent was not to apply the
Limitation Act in the proceedings to be taken under the CGST Act.
If the intention had been otherwise, there would have been no
occasion for conferring specifically power to the High Court to
entertain an appeal after the expiry of the period of limitation of
180 days if it was satisfied that there was sufficient cause for not
filing it within such period as Section 5 of the Limitation Act would
have become applicable by virtue of Section 29(2) of the
Limitation Act. Absence of the words 'but not thereafter' as
appearing in the Act of 1996 is of no moment. It is to be noted that
the words 'but not thereafter' were also absent in the provisions
which had fallen for consideration of the Hon'ble Supreme Court
in Hongo India (supra), Assistant Commissioner (CT) LTU,
Kakinada & Others (supra) and Singh Enterprises (supra),
33. In view of the above discussion, we find no merit in this appeal
and accordingly, the writ appeal is dismissed.
Sd/- Sd/-
(Arup Kumar Goswami) (Parth Prateem Sahu)
Chief Justice Judge
Anu
