Ajay Sharma, Member (J)
1. This appeal has been filed challenging the order dated 26.11.2019 passed by Commissioner (Appeals)-II, Central Tax, CGST, Mumbai by which the learned Commissioner dismissed the appeal filed by the appellant on the ground of limitation in terms of Section 85(3A) of the Finance Act, 1994 as the same has been filed beyond prescribed period.
2. The issues involved herein are whether the 1st Appellate Authority is justified in dismissing the Appeal on the ground of limitation and whether this Tribunal has power to condone the delay in filing Appeal before the 1st Appellate Authority beyond the period prescribed by Section 85(3A) of the Finance Act, 1994?
3. The facts leading to the filing of the instant appeal are stated in brief as follows. The appellant filed refund claim under Rule 5 of Cenvat Credit Rules, 2004 r/w Notification No. 27/2012-CE(NT) dated 18.6.2012 which were rejected by the adjudicating authority and on appeal filed by the appellant, the refunds were allowed by the Director General of Performance Management vide Order-in-Appeal dated 21.5.2018 . Thereafter the adjudicating authority vide order dated 6.12.2018 sanctioned the refund of Rs.70,71,607/-. Since the said authority did not grant any interest on refund therefore the appellant challenged the said order dated 6.12.2018 (served upon the appellant on 13.12.2018) by way of appeal before the learned Commissioner (Appeals) on 11.4.2019. Admittedly the appeal was filed after lapse of 58 days from the prescribed statutory time limit of two months and therefore the learned Commissioner dismissed the same on the ground of limitation.
4. Learned counsel for the appellant submits that this Tribunal has power to condone the delay. He further submits that there was sufficient cause for not filing the appeal within the statutory prescribed period before the learned Commissioner. The explanation given by learned Counsel was that the person in-charge in the appellant company suddenly resigned due to terminal illness of his family member and as a consequence thereof, the appellant faced certain difficulties to determine the pending tasks of that employee. According to learned counsel, the appointment of a suitable person in place of that employee took time but as soon as the suitable person is appointed, the matter was expeditiously forwarded to the counsel for preparation and filing of the appeal before the learned Commissioner. According to learned counsel, the delay was neither intentional nor deliberate but beyond the control of the appellant and therefore the same ought to have been condoned as sufficient reason has been shown. In support of his submission, learned counsel placed reliance on the following decision:-
(i) Yapp India Automotive Systems Pvt. Ltd. vs. CCE & ST, Pune-I; 2019(365) ELT 109 (Tri.-Mum.)
(ii) S. Mangaleshwari vs.CC, Trichy; (2019) 369 ELT 697 (Tri-Chennai)
(iii) Kellog India Pvt. Ltd. vs. CCE & ST, Raigad; 2022 (379) ELT 252 (Tri. Mum)
(iv) Panoli Intermediate (India) P.Ltd. vs. UOI; 2015(326) ELT 532 (Guj.)
(v) Electronics Corpn. Of India Ltd. vs. UOI; 2018(361) ELT 22 (AP)
5. Per contra learned Authorised Representative appearing on behalf of revenue heavily placed reliance on the law laid down by the Hon’ble Supreme Court in the matter of Singh Enterprises vs. CCE, Jamshedpur; 2008(221) ELT 163 (SC) which has also been relied upon by the learned Commissioner while dismissing the appeal filed by the appellant. He supported the findings recorded in the impugned order and prayed for dismissal of appeal.
6. I have heard learned counsel for the appellant and learned Authorised Representative on behalf of Revenue and perused the case records including the case laws and written submissions filed by the respective sides. In order to appreciate the issue involved herein it is necessary to have a look at the relevant provision i.e. Section 85(3A) of the Finance Act, 1994 which is reproduced hereunder:-
“85. Appeals to the Commissioner of Central Excise (Appeals). -
(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.”
The aforesaid provision prescribes that an appeal before the Commissioner can be presented within two months from the date of receipt of the Order of the adjudicating authority. The proviso thereto unequivocally lays down that in case of delay in presenting the appeal, the discretion of the Commissioner (Appeals) in considering application for condonation of delay is restricted to one month only. If the Commissioner (Appeals) is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of two months, he has the jurisdiction to allow it to be presented within a further period of one month. Thus, the total period, including the extended period to prefer an appeal under Section 85 of the Act, 1994, is three months. The provision of Section 35 of the Central Excise Act, 1944 which is parimateria with Section 85(3A) of the Finance Act, relating to appeals before Commissioner (Appeals) had come up for consideration before the Hon’ble Supreme Court in the matter of Singh Enterprises (surpa). The said Section 35 of the Central Excise Act, 1944 provides that any person aggrieved by any decision or order passed under the Act, may appeal to 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. While interpreting the aforesaid provision in the matter of Singh Enterprises (supra), the Hon’ble Supreme Court has laid down that the period upto which the prayer for condonation can be accepted is limited by the proviso to sub-section (1) of Section 35 of the Act and the position is crystal clear that the appellate authority has no power to allow the appeal to be presented beyond the period of thirty days after the expiry period of sixty days. In other words, the appellate authority can entertain the appeal by condoning the delay only upto 30 days beyond the normal period for preferring the appeal, which is 60 days. The Commissioner (Appeals) herein was, therefore, justified in dismissing the appeal on the ground of limitation in view of the aforesaid decision. I cannot lose sight of the legal position that as per Article 141 of the Constitution of the India the law declared by the Hon’ble Supreme Court is law of the land and is binding on all Courts/Tribunals and Authorities. Therefore in view of the aforesaid decision of the Hon’ble Supreme Court it is clear that the Commissioner has no power to condone the delay beyond the period prescribed by the statute and the appeal has been rightly dismissed by the learned Commissioner on the ground of limitation.
7. Now I have to see whether the delay in preferring appeal before the learned Commissioner beyond the normal period/extended period can be condoned by the Tribunal as submitted by learned counsel. While interpreting a similar provision, the Hon’ble Supreme Court in the matter of Chhattisgarh State Electricity Board v. Central Electricity Regulatory Commission; (2010) 5 SCC 23 has laid down that Section 5 of the Limitation Act, 1963 has no application where the Legislature has prescribed stipulated outer limit restricting discretion to condone the delay. The relevant paragraph of the said decision is reproduced as under:-
“16. In view of the above discussion, we hold that Section 5 of the Limitation Act cannot be invoked by this Court for entertaining an appeal filed against the decision or order of the Tribunal beyond the period of 120 days specified in Section 125 of the Electricity Act and its proviso. Any interpretation of Section 125 of the Electricity Act which may attract applicability of Section 5 of the Limitation Act read with Section 29(2) thereof will defeat the object of the legislation, namely, to provide special limitation for filing an appeal against the decision or order of the Tribunal and proviso to Section 125 will become nugatory.”
Therefore the application of Limitation Act has been ruled out by the Hon’ble Supreme Court. So far as the decision of the Tribunal in the matter of Yapp India (supra) is concerned, this Tribunal in the matter of Diamond Construction vs. Commr. of Cus., C.Ex. & S.T., Jabalpur; 2020 (35) GSTL 193 (Tri.-Del.) has held that the decision in Yapp India (supra) is contrary to the law laid down by the Hon’ble Supreme Court in Singh Enterprises (supra). Interpreting the similar provision i.e. Section 85(3A) ibid, the Tribunal in the matter of Diamond Construction (supra) while dismissing the appeal filed by the assessee therein has held that the Commissioner (Appeals) did not commit any illegality in dismissing the appeal. I have also gone through the decisions of the Hon’ble High Courts in the matter of Panoli Intermediate (supra) and Electronics Corporation of India Ltd. (supra) as cited by learned counsel. In my view these decisions will be of no help to the appellant as the same are in the light of the power of writ jurisdiction of the Hon’ble High Court under Article 226 of the Constitution of India, whereas no such power is available with the Tribunal. The Tribunal has to work within the four corners of the statute. Taking the similar view the Hon'ble High Court of Kerala in the matter of V.P. Khader v. CCE, ST &Cus; 2019 (25) GSTL 209 (Ker.) has held that neither the First Appellate Authority nor the Tribunal has the power to
condone the delay beyond the statutory period. Even the Tribunal in the matter of Shambhu Synthetics Pvt. Ltd. vs. Cenvat Credit; 2021 (378) ELT 208 (Tri-Delhi) has specifically held that the Tribunal does not have power, much less discretionary power beyond the extended period of thirty days after the expiry of normal period of sixty days. The order passed by the Hon'ble Bombay High Court in the matter of Rohit Enterprises vs. Commissioner in Writ Petition No. 11833 of 2022 as placed on record by learned Counsel in support of his submission, is also of no help to him as in that order the Hon'ble High Court has exercised its writ jurisdiction under Article 226 of the Constitution of India and that has been made clear by the Hon'ble High Court in paragraph 13 of the order, which is reproduced hereunder:-
“xxx xxx xxx
13. Applying the aforesaid guidelines to the facts of the present case, we find that the petitioner, who is sufferer of unique circumstances resulting from pandemic and his health barriers, would be put to great hardship for want of GST registration. The petitioner who is small scale entrepreneur cannot carry on production activities in absence of GST registration. Resultantly, his right to livelihood would be effected. Since his statutory appeal suffered dismissal on technical ground, we cannot allow the situation to continue. We find that, in the facts and circumstances of this case it would be appropriate to exercise our jurisdiction under Art.226 of the Constitution of India.
xxx xxx xxx”
8. In the matter of Albert & Company Pvt. Ltd. vs. CST, Chennai; 2015(37) STR 187 (Mad.), as placed on record on behalf of Revenue, it has been specifically held by the Hon’ble High Court, while interpreting Section 85(3) ibid, that the Tribunal has no power or authority to extend the period of limitation prescribed by the statute for entertaining the appeal. Similar issue, regarding the condonation of delay beyond the period specified in the statute in filing appeal, came up for consideration before the Full Bench of the Hon’ble High Court of Punjab & Haryana in the matter of State of Haryana v. Hindustan Machine Tools Ltd.2015 (328) E.L.T. 27(P & H), wherein it has been held that wherever the extent of condonable period is specifically prescribed by a statute, it would not be appropriate even under Articles 226/227 of the Constitution of India to entertain the writ petition so as to breach the express provision in the statute and act contrary to the mandate of the legislature. The relevant paragraph of the aforesaid decision is reproduced herein:
“19. The power conferred under Article 226/227 is designated to effectuate the law, to ensure that rule of law is enforced and the statutory authorities and other organs of the State act in accordance with law. It is not to be invoked whereby authorities are directed to act contrary to law. Wherever, the extent of condonable period is specifically prescribed by a statute, it would not be appropriate even under Article 226/227 of the Constitution to entertain the writ petition so as to breach the express provision in the statute and act contrary to the mandate of the legislature. It is for the legislature to prescribe the limits or not to do so for condoning the delay. Exercise of extraordinary writ jurisdiction under Article 226/227 of the Constitution of India would amount to doing violence to the statutory provision and rendering the same otiose. In other words, the legislative intent is clear that the Parliament never intended that delay beyond specified period in filing the appeal could be condoned. It is not for the High Court to re-write the statute in the garb of exercise of its jurisdiction under Articles 226/227 of the Constitution. The view which has been expressed by us herein above, is supported by various judicial precedents.”
9. In view of the above, it is well settled that once the period of limitation expired as prescribed u/s. 85(3) ibid neither the Tribunal nor the first appellate authority has power to condone the delay in filing the appeal beyond the statutory period. Therefore the order of the Commissioner (Appeals) dated 26.11.2019 rejecting the appeal on the ground that the appeal has been filed belatedly beyond the period stipulated under Section 85 of the Act does not warrant any interference and the same is accordingly dismissed.
