By TIOL News Service

CHENNAI, JULY 15, 2016 : THE Petitioner filed a Writ Appeal against the order passed by the Writ Court, declining to set aside the order passed by the Commissioner (Appeals) rejecting the Petition to condone delay of 223 days.

Being aggrieved by the order passed by the Adjudicating Authority, the appellant filed an appeal under Section 85 of the Finance Act, to the Commissioner of Service Tax (Appeals)-I, Chennai, with a delay of 223 days in filing the appeal. The reason for the delay is that the person, dealing with service tax matters, in their organisation, had left the service, leaving the relevant papers in disarray. Upon perusal of the records, the Commissioner (A) noticed that the date of issue of the Order-in-Original was 29.10.2010; copy of the order was received by the appellant on 01.11.2010; and the appeal was filed on 12.09.2011. As per Section 85 of the Finance Act, 1994, as it existed during the material point of time (prior to 28.05.2012), an appeal ought to have been filed before the Commissioner (Appeals), within three months from the date of communication of the order and the Commissioner (Appeals) is empowered to condone the delay of a further period of three months, if he is satisfied that the appellant was preferred by sufficient cause from presenting the appeal. As the delay was beyond the condonable period, provided under the statute, the CCE(A), dismissed the appeal.

The Petitioner filed a Writ Petition against the order passed by the Commissioner (A) and the same was dismissed by the Writ Court. Aggrieved by the same, the Petitioner filed a Writ Appeal.

After hearing both sides and referring to various precedent orders, the High Court held:

+ Section 85 of the Finance Act, is similar to Section 128 of the Customs Act, 1962; Section 34(3) of the Arbitration and Conciliation Act, 1996; Section 125 of the Electricity Act, 2003; Section 35-G of the Central Excise Act, 1944 and the statutes referred to above, are self contained Acts and codes by themselves. The High Court or the Supreme Court, as the case may be, cannot direct the appellate authority to condone the delay, beyond the extended period of limitation. Courts have also interpreted that when the legislative intent is reflected in the provisions of the special laws, excluding the provisions of Limitation Act, then the authorities under the statute, cannot exercise powers to condone the delay. On the aspect of the Court, exercising powers under Article 226 of the Constitution of India, to condone the delay, the decision of this Court in Indian Coffee Worker's Co-operative Society Ltd.,'s case, squarely applies to the case on hand, wherein, the Division Bench held as follows:

+ While the High Court exercising the jurisdiction under Article 226 of Constitution of India, approves the correctness of the order of the appellate authority, it has no power to direct the appellate authority to consider the appeal on merits as otherwise it would be nothing but Court extending the period of limitation.