- About us
- Site map
- Contact Us
- Contact Us
The Revenue had passed an order against the Petitioner on 08 July 2019, which had been dispatched on 29.08.2019 and received by the Petitioner on 30 July 2019. Aggrieved, the Petitioner had preferred an Appeal against the said Order. The Appeal had been dispatched by the Petitioner on 02 December 2019 by speed post and received by the Department on 04 December 2019. The said Appeal was dismissed by the Department as being time-barred.
Aggrieved, the Petitioner preferred a Writ before the Bombay HC contending that the Appeal had been filed within the prescribed time of three months. It was argued that the last date of extended period to file the Appeal was 30 November 2019, which was a Saturday. Accordingly, the Petitioner was legally within its right to file the Appeal on the immediately following working day i.e., 02 December 2019, with 01 December 2019 being a holiday on account of being a Sunday which would be within the limitation period. It was submitted that in terms of General Clauses Act, if any act or any proceeding is directed to be taken in any court within a prescribed period, then if the court is closed on that day or the last day of the prescribed period, the act or proceeding shall be considered as done or taken in due time if it is done or taken on the next day afterwards on which the court is open. The Petitioner further submitted that as the Appeal had been dispatched on 02 December 2019, it was within the limitation period and therefore, the Appeal ought to have been accepted.
The Bombay HC observed that in terms of the applicable Service Tax laws, the Appeal shall be presented within 2 months from the date of receipt of the decision or order of the adjudicating authority. Further, it was held that the Department may allow such appeal to be presented within a further period of one month. The HC also observed that as 01 December 2019 was a Sunday, the benefit of public holiday would be available to the Petitioner. It was further observed by the HC that the Appeal provisions of the ST Act provides that the Appeal is to be presented and not filed. Therefore, the date of receipt of the order or decision appealed against becomes very relevant.
In line with the said provisions and various SC judgements, the Bombay HC was of the view that the period prescribed in the law is 3 months, and not 90 days, from a specific date, the said period would expire in the third month on the date corresponding to the date upon which the period starts. Accordingly, it may mean 90 days or 91 days or 89 days. Basis the said observations, the HC held that the word ‘presented’ the appeal which was dispatched on 02 December 2019 was within 3 months even though it was not within 90 days and as such the condonation of delay has to viewed accordingly.
Skoda Auto Volkswagen India Private Limited vs. Commissioner (Appeals) and Another [WP (ST) No. NO.5497 of 2020]
The information provided in this update is intended for informational purposes only and does not constitute legal opinion or advice. Readers are requested to seek formal legal advice prior to acting upon any of the information provided herein. This update is not intended to address the circumstances of any particular individual or corporate body. There can be no assurance that the judicial/ quasi judicial authorities may not take a position contrary to the views mentioned hereinrra quis.
Sign up for the Newsletter