Service Tax Demand Order was received one month belatedly after its issuance: CESTAT allows Appeal of Mumbai Port Trust [Read Order]

The Mumbai bench of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) allowed the Mumbai Port Trust to file an appeal against the service tax demand as it was found that the same was received by the assessee one month after the issuance of the same.

The appellant, M/s Mumbai Port Trust, was in appeal against the demand of tax under section 73 of Finance Act, 1994 on alleged rendering of ‘port services’ in providing terminal facilities to Central and Western Railways for consideration, but Commissioner of Service Tax (Appeals-I), Mumbai, by order, declined to go into the merits on the ground that the appeal had been presented beyond the limitation prescribed in section 85 of Finance Act, 1994 which, with effect from 28th May 2012, was restricted to two months from the date of receipt of the order causing grievance and discretion in admitting appeal beyond further period of one month was contingent upon satisfaction of the first appellate authority that reasonable cause prevented filing.

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Counsel for the appellant submitted that the order under challenge had been received only on 4th June 2012 and the appellant had, admittedly, presented the appeal on 4th September 2012, exceeding the period therein, including that condonable, by one day.  It was contended by her that the order under challenge had been issued on 18th May 2012 following which the curtailment of the period within which appeal could be filed from three months to two months came into force. It was also pointed out that the preamble to the order under challenge reflected the provision of law as existing then.  It was contended that the finding of three months from the date of receipt of the order having expired was incorrect inasmuch as General Clauses Act, 1897 permitted exclusion of the day of receipt in such computation.  

A two member bench of  C J Mathew, Member (Technical) and Ajay Sharma, Member (Judicial)  found that the order under challenge had been issued on 18th May 2012 and there is no dispute over the receipt by the appellant on 4th June 2012. An amendment effected after issue of the said order could not but have incorporated the provisions afforded by the law as existing then and, consequently, the appeal could have been filed, even without seeking of condonation, within three months from the date of receipt.

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It was observed that by excluding the date on which the order had been received by the appellant herein, the appeal complies with the timeframe set out in section 85 of Finance Act, 1994. While allowing the appeal, the Court set aside the impugned order and remanded the matter back to the first appellate authority for disposal of appeal on merits.

To Read the full text of the Order CLICK HERE

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