Chandra Associates vs Commissioner (Appeals), Customs and Central Excise

D.K. Upadhyay, J—Heard learned Counsel for the petitioner and Shri Rajesh Singh Chauhan, learned Counsel appearing for the respondents. This petition assails the validity of the order dated 3-11-2014, passed by the Commissioner (Appeals), Customs, Central Excise & Service Tax, Lucknow whereby the appeal preferred by the petitioner against the demand of Service Tax made under Section 77 of the Finance Act, 1994 and the penalty imposed under Section 78 of the said Act along with certain other incidental penalties has been rejected.

From a perusal of the impugned order dated 3-11-2014, it appears that the reason given for rejection of the appeal is that the petitioner had failed to give sufficient reason for delayed filing of the statutory appeal under Section 85(3A) of the Finance Act, 2012. Section 85(3A) of the Finance Act, 2012 runs as under:-

"85(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."

Thus, the aforequoted provision prescribes the limitation of two months for filing of an appeal. However, the proviso appended to Section 85(3A) of the Act empowers the Commissioner to allow presentation of an appeal within a further period of one month provided the Commissioner is satisfied that the person approaching him to file appeal was prevented by sufficient cause from presenting the appeal within the period of limitation.

It was contended by the petitioner before the appellate authority that appeal was filed after 26 days beyond the statutory period of 60 days from the date of communication of the order/decision and further that the appellant could not inform or instruct the counsel of the firm of the order passed and also for filing of the appeal on account of his illness.

The appellate authority, however, has recorded a finding that the medical certificate of illness produced by the petitioner pertains to the period from 3-5-2013 to 2-6-2013 and inferred that the petitioner had fallen ill after 56 days from the receipt of the order which he intended to challenge by filing the appeal.

Even if, the medical certificate submitted by the petitioner disclosed his ailment from 3-5-2013 to 2-6-2013, it cannot be said that on account of ailment during this period the petitioner could not inform or communicate the order to be appealed against and could not instruct the Counsel of the firm for filing of the appeal.

The right of filing appeal under Section 85(3A) of the Finance Act is a statutory right conferred on the person concerned by appropriate legislation enacted by the Parliament. Right of appeal, it is well established, is a very valuable right which cannot be taken away by adopting such an approach which is reflected from the impugned order passed by the Commissioner (Appeals) in the instant case. The legal and judicial approach requires the statutory authority to adopt the course which furthers the cause of justice and which enables the person intending to file an appeal not only to exercise that right but to actually avail the same. The endeavour, in such matters, should be to give opportunity to avail the right of appeal, which is a statutory right; rather than to shut it.

For the reasons aforesaid, the impugned order dated 3-11-2014, passed by the Commissioner (Appeals) Customs, Central Excise & Service Tax, Lucknow, as is contained in Annexure No. 1 to the writ petition, is hereby quashed. The Commissioner is directed to reconsider the application moved by the petitioner for condonation of delay in preferring the appeal and decide the same expeditiously in the light of the observations made above. In case the said application finds favour with the Commissioner, the proceedings of the appeal itself will be expedited.

The petitioner shall not seek unnecessary adjournments and the adjournment, if sought, can be granted by the Commissioner only in extraordinary circumstances, that too, by passing a reasoned and speaking order. With the aforesaid observations/directions, the writ petition is allowed.