date of serving of order can not be counted to file appeal

By | August 20, 2015
(Last Updated On: August 20, 2015)

Date of serving of order can not be counted to file appeal

Q:  Whether date of serving of order can be counted while computing time limit to file appeal ?

Law : Service Tax

In computing time-limit to file appeal under Act, date on which impugned order is served on assessee has to be excluded, as per provisions of section 35O of the Central Excise Act, 1944.

Section 35O  of the Central Excise Act, 1944 is reproduced as follow

Exclusion of time taken for copy.

35-O. In computing the period of limitation prescribed for an appeal or application under this Chapter, the day on which the order complained of was served, and if the party preferring the appeal or making the application was not furnished with a copy of the order when the notice of the order was served upon him, the time requisite for obtaining a copy of such order shall be excluded.

HIGH COURT OF ALLAHABAD

Rotomac Global (P.) Ltd.

v.

Commissioner, Central Excise, Kanpur

TARUN AGARWALA AND SURYA PRAKASH KESARWANI, JJ.

CENTRAL EXCISE APPEAL NOS. 125 AND 126 OF 2015

JULY  8, 2015

ORDER

1. We have heard Sri Ashok Bhatnagar, the learned counsel for the appellant and Sri Prateek Chandra, the learned Counsel holding brief of Sri Vinod Kant, the learned counsel for the respondent.

2. It transpires that the appellant’s application for refund was rejected by the authority, who passed the order-in-original, dated 5th June, 2013. This order was served upon an employee of the appellant in the respondent’s office on 26th June, 2013 and was placed before the appellant on 28th June, 2013. The appellant preferred an appeal on 26th August, 2013 under Section 85 of the Finance Act (2), 1994.

3. According to the appellant, the appeal was filed within the stipulated period of two months. This appeal was however, rejected by the Commissioner (Appeals) by its order dated 25th September, 2013 on the ground of limitation. The Commissioner (Appeals) held that there was delay of two days and that the appellant had misrepresented the fact that the order-in-original was served on 28th June, 2013, whereas it was actually served upon his employee on 26th June, 2013 and on this misrepresentation, the appeal was dismissed as being barred by limitation. The appellant, being aggrieved, filed an appeal before the Customs Excise and Service Tax Appellate Tribunal, which was also rejected on the same ground by an order, dated 6th January, 2015. The appellant, being aggrieved, has filed the present appeal under Section 35G of the Central Excise Act, 1944.

4. Having heard the learned counsel for the appellant, we are of the opinion that the appeal was presented within the stipulated period of 60 days as provided under Section 85 of the Finance Act (2), 1994 and that there was no misrepresentation. Section 85 of the Finance Act provides as under:

“Section 85. Appeals to the [Commissioner] of Central Excise (Appeals).— (1) Any person aggrieved by any decision or order passed by an adjudicating authority subordinate to the Commissioner of Central Excise may appeal to the Commissioner of Central Excise (Appeals).

(2) Every appeal shall be in the prescribed form and shall be verified in the prescribed manner.
(3) . . . . . . . . . . .
(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.”

5. A perusal of Section 85(3A) of the Finance Act (2) of 1994 indicates that the appeal has to be presented within two months from the date of receipt of the decision or order.

6. Admittedly, the order-in-original was served upon an employee of the appellant on 26th June, 2013 under Section 35-O of the Central Excise Act provides the proceeding for computing the period of limitation prescribed for an appeal and stipulates that the day on which the order was served has to be excluded. Therefore, while counting 60 days, 26th June, 2013 has to be excluded while counting the period of limitation.

7. We also find from a perusal of page 63 of the paperbook that the appeal was served in the office on 26th August, 2013. The finding of the Tribunal that the appeal was presented on 27th August, 2013 is against the material on record. We are therefore, of the opinion that the appeal was filed within 60 days.

8. Further, we also find that the first appellate authority as well as the Tribunal committed a manifest error of law in holding that the appellant had misrepresented the fact that the order was served upon them on 28th June, 2013.

9. The appellant in paragraph 1 to 1.8 of the grounds of appeal before the Tribunal has clearly explained as to how he had treated the original order to have been served upon them on 28th June, 2013. Such explanation given only explains as to how the appellant had treated the order to have been served upon them on 28th June, 2013. Such explanation given clearly indicates that there was no misrepresentation to the effect that the order was not served on 26th June, 2013 but on 28th June, 2013.

10. Even otherwise, we are of the opinion that a liberal approach should have been adopted by the Tribunal as well as by the appellate authority. The delay of two days was not fatal and a liberal approach should have been adopted in handling the matter.

11. Consequently, for the reasons stated aforesaid, the order of the first appellate authority as well as the order of the Tribunal cannot be sustained and are quashed. The appeal is allowed at the admission stage itself. The matter is remanded to the Commissioner (Appeals) to decide the appeal on merits after hearing all the parties concerned.

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