Reference of month means a British Calendar month and not 30/31 days.

PJ/CASE LAW/2014-15/2321

Case:-THE AHMEDNAGAR MERCHANTS CO-OP BANK LTD Vs COMMISSIONER OF CENTRAL EXCISE & CUSTOMS, AURANGABAD

Citation:-2014-TIOL-1635-CESTAT-MUM

Brief Facts:- The lower appellate authority has dismissed the appeal of the appellant as time barred on the ground that appeal was filed on 17/02/2014 in respect of an adjudication order received on 18/11/2013 and, therefore, the appeal has been filed after the expiry of 91 days from the date of communication of the order. Consequently, a demand of Rs.4,85,174/- confirmed against the appellant by the adjudicating authority along with interest thereon and also penalties under Section 78 of the Finance Act, 1994 and Rule 15A of the CENVAT Credit Rules, 2004 came to be confirmed against the appellant M/s. Ahmednagar Merchants Co-Op. Bank Ltd.As per General Clauses Act a month is defined as a British Calendar month and it is not defined in terms of number of days. The Commissioner is empowered to condone a delay of a further period of one month on the basis of proper facts. Thus total time period of 3 months is available to file the appeal. Here the appeal has been filed after expiry of 91 days from the date of communication of order which is held as improper by the Appellate Authority.

Appellant contentions:- None represented the appellant despite notice. In the appeal memorandum it has been stated that the impugned order is bad in law as the appellate authority has not applied his mind properly to the facts of the case and the provisions of Rule 6(3) and 6(5) of CENVAT Credit Rules, 2004 have not been applied properly.

Respondent contentions:-The learned Superintendent (AR) appearing for the Revenue, on the other hand, reiterates the findings of the lower appellate authority.

Reasoning of Judgment:-The Honourable Judge carefully considered the submissions. As the issue lies in a narrow compass, he took up the appeal itself with the consent of Revenue after waiving the requirement of pre-deposit of the dues adjudged.

The short question for consideration is whether the appeal has been filed in time or not? As per Section 85 (3A) of the Finance At, 1994, an appeal shall be presented within two months from the date of receipt of the decision or order and if the appellant is prevented by sufficient cause from presenting the appeal within the aforesaid period of two months, the appellate authority can condone the delay and allow the appeal to be presented within a further period of one month. Thus, the total time period of 3 months is available to the appellant to file the appeal. In their application for condonation of delay, the appellant has pleaded that they were awaiting for decision on the same issue in respect of other Branches, and, therefore, the delay occurred. The reason adduced by the appellant cannot be said to be unsatisfactory.
Since the appellant received order on 18/11/2013, the period of two months for filing the appeal expired on 18/01/2014 and the condonable grace period expired on 18/02/2014. In the present case, the appeal has been filed on 17/02/2014. The General Clauses Act defines a month as a British Calendar month and it is not defined in terms of number of days. Therefore, in the present case, the appeal has been filed in time i.e. within the condonable period. Therefore, the period is not beyond the condonable period and the appellate authority should have condoned the delay. Inasmuch as the appellant authority has not considered the appeal on merits, in the interest of justice, the matter is remanded back to the appellate authority for decision on merits. Needless to say the appellant should be heard before passing the denovo order. Thus, the appeal is allowed by way of remand. The stay petition is also disposed of.

Decision:- Matter remanded.

Comment:- The crux of his case is that the time period if specified as “month” should not be calculated on the basis of actual number of days. According to the General Clauses Act, wherever reference has been made for month, it is to be construed as “British Calendar month”. Thus, it was concluded that the appeal filed is not beyond the condonable period if the defination of month is construed as “British Calendar month” & the appellate authority should have condoned the delay.

Prepared by: Meet Jain.

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PJ/CASE LAW/2014-15/2321

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