Kerala High Court
M/S. N.N Steel Trading Co vs The Joint Commissioner (Appeals) on 22 October, 2024
Author: P Gopinath
Bench: P Gopinath
2024:KER:78468
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE GOPINATH P.
TUESDAY, THE 22ND DAY OF OCTOBER 2024 / 30TH ASWINA, 1946
WP(C) NO. 35471 OF 2024
PETITIONER:
M/S. N.N STEEL TRADING CO.,
11/186, MADAKKARA ROAD, CHERVATHUR, KASARGOD,
REPRESENTED BY ITS PROPRIETOR SHRI AMEER ALI UB,
PIN - 671 313.
BY ADVS.
AJI V.DEV
ALAN PRIYADARSHI DEV
S.SAJEEVAN
RESPONDENTS:
1 THE JOINT COMMISSIONER (APPEALS),
CENTRAL TAX, CENTRAL EXCISE AND CUSTOMS,
C.R. BUILDING, I.S. PRESS ROAD, KOCHI,
PIN - 682 018.
2 THE ASSISTANT COMMISSIONER,
CENTRAL TAX AND CENTRAL EXCISE, CENTRAL GST,
KANNUR DIVISION, CENTRAL REVENUE BUILDING,
KUZHIKUNNU, KANNUR, PIN - 670 001.
3 THE CENTRAL BOARD OF INDIRECT TAXES & CUSTOMS,
REPRESENTED BY ITS CHAIRMAN, DEPARTMENT OF
REVENUE, NORTH BLOCK, NEW DELHI, PIN - 110 001.
4 UNION OF INDIA,
REPRESENTED BY ITS SECRETARY (REVENUE),
MINISTRY OF FINANCE, GOVERNMENT OF INDIA,
NORTH BLOCK, NEW DELHI, PIN - 110 001.
BY ADV. V. GIRISHKUMAR (SR.SC)
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 22.10.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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WP(C) 35471/2024 2
'C.R'
JUDGMENT
The petitioner has approached this Court being
aggrieved by the fact that an appeal filed by the petitioner
against Ext.P1 order has been rejected by Ext.P3 order of the
First Appellate Authority on the ground that it was barred by
limitation under the provisions of Section 107 of the Central
Goods and Services Tax/State Goods and Services Tax Acts,
2017 (CGST/SGST Acts).
2. The learned counsel appearing for the petitioner
submits that Ext.P1 order was served on the petitioner on
06-07-2023. It is submitted that under Section 107 of the
CGST/SGST Acts, a period of three months is available for
filing an appeal, and an appeal can be presented within a
further period of one month along with an application for
condonation of delay. It is submitted that the appeal which
resulted in Ext.P3 order of the First Appellate Authority was
presented on 06-11-2023. It is submitted that the First
Appellate Authority proceeded on the basis that the term
'month' in Section 107 of the CGST/SGST Acts referred to a
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period of 30 days in which event the appeal filed on
06-11-2023 was not maintainable. The learned counsel
places reliance on the judgment of the Supreme Court in
State of Himachal Pradesh and Another v. Himachal
Techno Engineers and Another; (2010) 12 SCC 120, to
contend that if the word 'month' is used in any statute, the
same can only be counted in British calendar months, and
therefore, the appeal filed on 06-11-2023 was clearly within
the condonable period mentioned in Section 107 of the
CGST/SGST Acts.
3. The learned Senior Standing Counsel appearing for
the respondents does not seriously dispute the legal
proposition as set out in the judgment of the Supreme Court
in Himachal Techno Engineers (supra).
4. Having heard the learned counsel appearing for the
petitioner and the learned Senior Standing Counsel
appearing for the respondents, I am of the view that the
issue stands covered in favour of the petitioner by the
judgment of the Supreme Court in Himachal Techno
Engineers (supra), where while considering the question of
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whether an application under Section 34 of the Arbitration
and Conciliation Act, 1996, had been filed within time, the
Supreme Court held as follows:
"14. The High Court has held that "three
months" mentioned in Section 34(3) of the Act refers
to a period of 90 days. This is erroneous. A "month"
does not refer to a period of thirty days, but refers to
the actual period of a calendar month. If the month
is April, June, September or November, the period of
the month will be thirty days. If the month is
January, March, May, July, August, October or
December, the period of the month will be thirty one
days. If the month is February, the period will be
twenty-nine days or twenty eight days depending
upon whether it is a leap year or not.
15. Sub-section (3) of Section 34 of the Act and
the proviso thereto significantly, do not express the
periods of time mentioned therein in the same units.
Sub-section (3) uses the words "three months" while
prescribing the period of limitation and the proviso
uses the words "thirty days" while referring to the
outside limit of condonable delay. The legislature
had the choice of describing the periods of time in
the same units, that is, to describe the periods as
"three months" and "one month" respectively or by
describing the periods as "ninety days" and "thirty
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days" respectively. It did not do so. Therefore, the
legislature did not intend that the period of three
months used in sub-section (3) to be equated to 90
days, nor intended that the period of thirty days to
be taken as one month.
16. Section 3(35) of the General Clauses Act,
1897, defines a "month" as meaning a month
reckoned according to the British calendar.
17. In Dodds v. Walker - (1981) 2 All ER 609
(HL), the House of Lords held that in calculating the
period of a month or a specified number of months
that had elapsed after the occurrence of a specified
event, such as the giving of a notice, the general rule
is that the period ends on the corresponding date in
the appropriate subsequent month irrespective of
whether some months are longer than others. To
the same effect is the decision of this Court in Bibi
Salma Khatoon v. Sate of Bihar; (2001) 7 SCC 197.
18. Therefore when the period prescribed is
three months (as contrasted from 90 days) from a
specified date, the said period would expire in the
third month on the date corresponding to the date
upon which the period starts. As a result, depending
upon the months, it may mean 90 days or 91 days or
92 days or 89 days".
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In the light of the law laid down by the Supreme Court in
Himachal Techno Engineers (supra) and having regard to
the provisions contained in Section 3(35) of the General
Clauses Act, 1897, I am of the view that the appeal presented
by the petitioner against Ext.P1 order on 06-11-2023 was
within the condonable period mentioned in Section 107 of
the CGST/SGST Acts.
Therefore, this writ petition is allowed. Ext.P3 order of
the First Appellate Authority is quashed. The appeal filed by
the petitioner against Ext.P1 order along with the application
for condonation of delay will stand restored to the file of the
First Appellate Authority, who shall pass fresh orders taking
note of the observations contained herein above.
Sd/-
GOPINATH P.
JUDGE
ats
2024:KER:78468
APPENDIX OF WP(C) 35471/2024
PETITIONER'S EXHIBITS
Exhibit P1 TRUE COPY OF THE ORDER DATED 28.03.2023
Exhibit P1(a) TRUE COPY OF SUMMARY OF ORDER IN FORM GST
DRC 07 DATED 06.07.2023
Exhibit P2 TRUE COPY OF THE APPEAL MEMORANDUM DATED
06.11.2023
Exhibit P2(a) TRUE COPY OF APPLICATION FOR CONDONATION
OF DELAY DATED 06.11.2023
Exhibit P3 TRUE COPY OF THE APPELLATE ORDER OF THE
1ST RESPONDENT AUTHORITY DATED 03.09.2024
Exhibit P4 TRUE COPY OF THE JUDGMENT OF THE HON'BLE
SUPREME COURT IN STATE OF HP. V. M/S.
HIMACHAL TECHNO ENGINEERS, (2010) 12 SCC
210 DATED 26.07.2010
