Delay cannot be Condoned beyond the Statutory Period: Madras High Court [Read Order]

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The Division Bench of the Madras High Court recently, in a Writ Appeal, refused to condone a delay petition on ground that the appellate Authorities, including the High Court has no power to condone a delay in filing appeal beyond the statutory period. 

The Appellant had filed first appeal against a penalty order passed against them with a delay of 223 days in filing the appeal. The reason for the delay is that the person, dealing with service tax matters, in their organisation, had left the service, leaving the relevant papers in disarray. Upon perusal of the records, the 1st respondent noticed that the date of issue of the Order-in-Original was 29.10.2010; copy of the order was received by the appellant on 01.11.2010; and the appeal was filed on 12.09.2011. As per Section 85 of the Finance Act, 1994, as it existed during the material point of time (prior to 28.05.2012), an appeal ought to have been filed before the Commissioner (Appeals), within three months from the date of communication of the order and the Commissioner (Appeals) is empowered to condone the delay of a further period of three months, if he is satisfied that the appellant was preferred by sufficient cause from presenting the appeal. As the delay was beyond the condonable period, provided under the statute, the 1st respondent dismissed the appeal.

The main contentions of the appellant were that when the order passed by the Additional Commissioner of Service Tax, Chennai, 2nd respondent, is against the principles of natural justice and goes to the root of the matter, denying fair opportunity, the Writ Court ought to have directed the 1st respondent to decide the case, on merits.

According to the Revenue, there is no material irregularity in the order impugned and prayed for dismissal of the appeal.

The Court while dismissing the Writ Appeal observed that section 85 of the Finance Act, is similar to Section 128 of the Customs Act, 1962; Section 34(3) of the Arbitration and Conciliation Act, 1996; Section 125 of the Electricity Act, 2003; Section 35-G of the Central Excise Act, 1944 and the statutes referred to above, are self contained Acts and codes by themselves. The High Court or the Supreme Court, as the case may be, cannot direct the appellate authority to condone the delay, beyond the extended period of limitation. Courts have also interpreted that when the legislative intent is reflected in the provisions of the special laws, excluding the provisions of Limitation Act, then the authorities under the statute, cannot exercise powers to condone the delay. The refused to grant delay condonation by following the decision of the same Court in Indian Coffee Worker’s Co-operative Society Ltd.,’s case in which the it was held that the High Court under Article 226, has no power to direct the appellate authority to consider the appeal on merits as otherwise it would be nothing but Court extending the period of limitation. On this basis, the Writ Appeal was dismissed.

Read the full text of the Judgment below.

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