K V NARAYANA REDDY Vs. ADDITIONAL COMMISSIONER

JUDGEMENT

(1.) THIS writ petition has been filed by the petitioner asking for a writ of mandamus declaring the action of the 1st respondent in levying Service Tax on the works undertaken by the petitioner as illegal, arbitrary and consequently set aside the Original Order dated __.1/2014 passed by the 1st respondent for the period 2011 -2012.

(2.) GOING by the petitioners own case, the order aforesaid challenged before us was unsuccessfully taken to the appellate authorities under statute successively and both these authorities refused to entertain the same as they were presented not only beyond the period of limitation prescribed therefor, but also beyond the condonable period. On identical fact and issue, we have delivered a judgment on 29.1.2015 in Writ Petition No. 1409 of 2015 between M/s. Resolute Electronics Private Limited and Union of India, wherein, we have observed in paragraphs 5 and 6 thereof as follows:

(3.) THE aforesaid conclusion of ours is in consonance with the judgment of the Honble Supreme Court in Singh Enterprises vs. Commissioner of Central Excise, Jamshedpur, 2008 221 ELT 163, though we did not have the occasion to see the same. Para -8 of the said judgment is relevant for our purpose, which reads as follows: The Commissioner of Central Excise (Appeals) as also the Tribunal being creatures of Statute are vested with jurisdiction to condone the delay beyond the permissible period provided under the statute. The period upto which the prayer for condonation can be accepted is statutorily provided. It was submitted that the logic of Section 5 of the Indian Limitation Act, 1963 (in short the Limitation Act) can be availed for condonation of delay. The first proviso to Section 35 makes the position clear that the appeal has to be preferred within three months from the date of communication to him of the decision or order. However, if the Commissioner is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of 60 days, he can allow it to be presented within a further period of 30 days. In other words, this clearly shows that the appeal has to be filed within 60 days but in terms of the proviso further 30 days time can be granted by the appellate authority to entertain the appeal. The proviso to sub -section (1) of Section 35 makes the position crystal clear that the appellate authority has no power to allow the appeal to be presented beyond the period of 30 days. The language used makes the position clear that the legislature intended the appellate authority to entertain the appeal by condoning delay only upto 30 days after the expiry of 60 days which is the normal period for preferring appeal. Therefore, there is complete exclusion of Section 5 of the Limitation Act. The Commissioner and the High Court were therefore justified in holding that there was no power to condone the delay after the expiry of 30 days period.