G.A.NO.2708 OF2015APOT381OF2015W.P.NO.526 OF2015IN THE HIGH COURT AT CALCUTTA Civil Appellate Jurisdiction ORIGINAL SIDE BENGAL INVESTMENTS LIMITED Versus ASSISTANT COMMISSIONER(TARC) SERVICE TAX-I & ORS BEFORE: The Hon'ble JUSTICE SOUMITRA PAL The Hon'ble JUSTICE ISHAN CHANDRA DAS Date : 16th September, 2015.
For appellant : Mr.Ananda Sen, Advocate Mr.B.Mal,Advocate For respondent: Mr.R.Bharadwaj,Advocate Soumitra Pal, J.:- The Court : At the outset, Mr.Ananda Sen, learned advocate for the appellant submits that the delay of two days in filing the appeal may be condoned, which Mr.Bharadwaj, learned advocate for the respondent, in his usual fairness, does not oppose.
Therefore, the delay in filing the appeal is condoned.
Let the appeal be registered, if it is otherwise in form.
Since necessary documents are on record, by consent of Mr.Sen and Mr.Bharadwaj, the appeal is treated as on day’s list and is taken up for hearing.
This appeal has been preferred against the judgement and order dated 25th June, 2015 passed in W.P.No.526 of 2015 (Bengal Investments Limited v.
Assistant Commissioner (TARC) Service Tax-I & Ors.) whereby the writ petition was dismissed by the learned Single Judge holding, inter alia, as under : “The writ petitioner has approached this Court essentially challenging the orders dated 31st December, 2012, 7th October, 2013, 4th December, 2014 and the issuance of the recovery notice dated 20th February, 2015, all passed and/or issued by various authorities under the Finance Act, 1994 and the Service Tax Rules, 1995.
It is noticed that the initial order, being the order-in-original, was passed on 31st December, 2012 by the Additional Commissioner, Service Tax, Kolkata upon giving adequate opportunity of hearing to the petitioner and after recording cogent reasons in support of his decision whereby a demand of service tax including CESS was confirmed for a sum of Rs.4,69,141/- together with penalty for a sum of Rs.2,34,571/-.
It is noticed that some leniency was also shown by the said authority while dropping a demand of Rs.6,86,841/-.
Nevertheless, being aggrieved, the writ petitioner preferred an appeal before the Commissioner of Central Excise (Appeal) under section 85 of the Finance Act, 1994, on 30th of June, 2013, i.e.much beyond the period of limitation, as prescribed under the statute.
The petitioner however, made an application for condonation of delay wherein the only ground that was taken was that the concerned person to whom work was entrusted for service tax matters was absent due to his ill health for a long period of time.
Written submission was also advanced by the petitioner and finally on 7th October, 2013, the Commissioner of Central Excise (Appeals).Appeal-I, Kolkata, passed an order observing that the appellant (being the writ petitioner) had filed the appeal after more than six months from the date of receipt of the order.
Since he had no power to condone the delay of more than one month, he proceeded to observe that the appeal was liable to be dismissed and dismissed the appeal, being time barred.
The writ petitioner, thereafter, went up before the Appellate Tribunal, being, the Customs Central Excise and Service Tax Appellate Tribunal, East Regional Bench at Kolkata.
The Tribunal while referring to section 85 of the Finance Act, 1994 and relying on the judgment of the Supreme Court rendered in M/s.Singh Enterprises versus Commissioner of Central Excise, Jamshedpur & ORS.reported in 2008(221) ELT163SC proceeded to dismiss the writ petitioner’s appeal observing that the Commissioner (Appeals) had not been vested with the power to condone the delay beyond the period of one month in addition to the statutory limit of two months as prescribed under section 85 of the 1994 Act.
In such a factual backdrop, the writ petitioner has now approached this Court.
The learned advocate appearing on behalf of the petitioner relies on a judgment of the Supreme Court rendered in the case of State of U.P.versus Mohd.
Nooh reported in AIR1958Supreme Court 86.
He submits that the initial order passed by the adjudicating authority was so patent and loudly obtrusive, it was liable to be interferred with by the Commissioner (Appeals) and even if the Commissioner (Appeals) did not have any statutory power to condone the delay, the High Court, in exercise of its jurisdiction under Article 226 of the Constitution of India, ought to interfere.
On the other hand, the learned advocate representing the Central Excise authorities refers to and relies upon the same decision which was referred to and relied upon by the CustoMs.Excise and Service Tax Appellate Tribunal, East Regional bench, Kolkata.
In the facts and circumstances of the instant case what is required to be considered is whether the initial order passed by the Additional Commissioner, Service Tax, Kolkata dated 31st December, 2012 can be held to be so patent and loudly obtrusive that this Court will interfere with the same under Article 226 of the Constitution of India.
As observed earlier, the said order has been passed after adequate opportunity of hearing was granted and is supported with cogent reasons.
All relevant facts have been taken into consideration and by no stretc.of imagination it can be held that the said order is so patent and loudly obtrusive, which will warrant an interference by the writ Court.
That apart and in any event, there is no infirmity of reasoning in respect of the subsequent order passed by the Commissioner of Central Excise (Appeals).Appeal-I, Kolkata dated 7th October, 2013 and finally, the order passed by the CustoMs.Excise and Service Tax Appellate Tribunal, East Regional Bench, Kolkata dated 4th December, 2014, affirming the order of Commissioner of Central Excise (Appeals).Appeal-I, Kolkata, while referring to and relying upon section 85 of the Finance Act, 1994 and the judgment of the Supreme Court in the case of M/s.Singh Enterprises (supra).For reasons stated above, the writ petition is liable to be dismissed and is accordingly dismissed.” It is submitted by Mr.Sen that though the Additional Commissioner, Service Tax, Kolkata had no jurisdiction to pass the order dated 31st December, 2012, however the demand of service tax was confirmed, interest was directed to be paid and penalty was imposed.
Thereafter, by order dated 7th October, 2013, the statutory appeal preferred by the appellant was dismissed by the Commissioner (Appeals) as time barred, which by order dated 4th December, 2914 was confirmed by CESTAT.
Submission is in view of the law laid down by the Supreme Court in Raza Textiles Ltd.v.Income-Tax Officer, Rampur : 87 ITR539(SC).and in Arun Kumar & Ors v.
Union of India & ORS.(2006) 286 ITR89(SC).and also in Union of India v.
Jagadish Prasad Jalan Nandalal : 2012(4) CHN (Cal) 1, and in the unreported judgements delivered by the Division Bench on 9th June, 2011 in AST No.479 of 2011 and on 19th January, 2015 in W.P.(T)No.79 of 2015 with W.P.(T) No.80 of 2015 with W.P.(T)No.81 of 2015 with W.P.(T)No.85 of 2015 (M/s.Adhunik Power Transmission Limited v.
Kali Prasad).as the Additional Commissioner while passing the order had assumed jurisdiction which it did not possess, the learned Single Judge erred in dismissing the writ petition.
Since the appellant had discharged the constitutional obligation under Article 366(29A)(d) by paying West Bengal VAT and as the pre-condition of section 65(105)(zzzzj) itself was not satisfied and as the appellant has already transferred the right of the machinery for all times to come, the Additional Commissioner had erred in passing the order.
Mr.Bharadwaj, learned advocate for the respondent, submits that since the appellant had preferred statutory appeal on merits under Section 85 of the Finance Act, 1944 beyond the period of limitation, in view of the principle of law laid down in the unreported judgment delivered on 16th August, 2015 in MAT4252015 [Satish Kumar Sharma versus Union of India & Ors.]., the learned Single Judge was justified in dismissing the writ petition.
Assuming the Additional Commissioner, while passing the order in original, had wrongly assumed jurisdiction, the petitioner, if aggrieved, should have filed the statutory appeal within the time limit as prescribed under the law.
Having not filed the statutory appeal within the period of limitation, subsequently the petitioner cannot challenge the said order.
As seen under section 85(3A) an appeal has to be presented within two months.
However, an appeal can be presented beyond two months but within one month, if it can be shown that the appellant was prevented by sufficient cause from presenting the appeal within two months.
So an appeal can be presented at the most within three months.
In the instant case, as noted, the Additional Commissioner had passed an order.
Aggrieved, the petitioner company preferred appeal before the Commissioner (Appeals) beyond the period of limitation.
The Commissioner (Appeals) dismissed the appeal on the point of limitation which was confirmed by CESTAT.
The question is whether the appellant herein, the writ petitioner, can challenge the order dated 31st December, 2012 passed by the Additional Commissioner in the writ jurisdiction on the ground of patent illegality and want of jurisdiction after expiry of the period of limitation prescribed in section 85(3A) of the Finance Act, 1994.
It is a settled proposition of law that an authority under the State should have the power to decide an issue.
If the authority lacks jurisdiction, an order passed is non est in the eye of law.
Since lack of jurisdiction in deciding an issue goes to the root of the matter, a writ petition can be filed questioning the jurisdiction of an authority to pass an order.
So as under section 85(3A) the maximum time limit to prefer statutory appeal is three months, if the petitionercompany was aggrieved by the order dated 31st December, 2012 on the ground that the authority lacked jurisdiction, being conscious of its rights, it should have filed the writ petition challenging the said order within the said prescribed period of limitation.
It is to be borne in mind that the provision stipulating the period of limitation under section 85(3A) has to be strictly construed as any other interpretation would defeat the very object of enacting the said provision.
If the prayer of the appellant is allowed, it would encourage the litigants to approach the High Court in the Writ Jurisdiction by filing a writ petition at any point of time which would open a floodgate of litigations making section 85(3A) otiose.
Hence, in view of the aforesaid discussion in the background of the statutory provisions, we respectfully differ from the principle of law laid down in paragraph 9(iii) in M/s Adhunik Power Transmission (supra) specifically relied on by the appellant.
The law laid down in the judgment in Raza Textitles (supra) is not applicable as therein the issue was not of statutory limitation but was whether the jurisdictional fact was rightly decided by the Income Tax Officer or not.
The unreported judgment in AST No.479 of 2011 delivered on 9th June, 2011 does not deal with the question as raised in the case in hand and thus not applicable.
The judgment of the Full Bench of the Calcutta High Court in Jagadish Prasad Jalan Nandalal (supra).dealing with the provisions of FEMA and on a separate issue, does not help the case of the appellant as therein it was held that “High Court cannot condone delay for a single day exceeding sixty days, as mentioned in the said section, simply because, the High Court is not conferred with such power”.
(paragraph
30) Therefore, the appeal is dismissed.
Accordingly, the application is also dismissed.
There will be no order as to costs.
(SOUMITRA PAL, J.) I agree.
(ISHAN CHANDRA DAS, J.) ssaha/subash AR(CR)