Mumbai Port Trust Vs Commissioner of Service Tax — I ( CESTAT Mumbai)
The appellant is the Mumbai Port Trust. A demand of service tax under “port” services was confirmed for providing terminal facilities to Central and Western Railways. On appeal, the Commissioner (appeals) dismissed the appeal on the ground that it was belated beyond condonation. Hence, appeal.
Hon’ble CESTAT, Mumbai set aside the order and allowed the appeal. It held: (i) the order was passed on 18.05.2012 and served on 04.06.2012; therefore; amendment to section 85; with effect from 28.05.2012; reducing the time limit for filing appeal from 3 months to 2 months could not apply; (ii) in terms of section 9 of the General Clauses Act, the date on which order is received has to be excluded for purpose of calculating limitation; hence; the appeal was within the prescribed time limit of 3 months; (iii) hence, appeal is allowed with direction to commissioner (appeals) to decide the issue on merits.
The matter was argued by Ld. Counsel Bharat Raichandani along with Advocate Neha Chakraborty.
FULL TEXT OF THE CESTAT MUMBAI ORDER
The appellant, Mis Mumbai Port Trust, was in appeal against e demand of tax under section 73 of Finance Act, 1994 on aUeted. rendering of ‘port services’ in providing terminal facilities to Central and Wester n Railways for consideration, but Commissioner of Service Tax (Appeals-1), 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 28′ 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.
2. According to Learned Counsel for the appellant, the order under challenge had been received only on 4′” 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 Orcler 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.
3. We have heard Learned Authorised Representative who contended that the appellant had made any plea for condonation of delay in filing of appeal.
4. 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. By excluding the date on which the order had been received by the appellant herein, the appeal is in compliance with the time- frame set out in section 85 of Finance Act, 1994. Accordingly, dismissal of appeal at the threshold was not in accordance with the law. Consequently, we set aside the impugned order and remand the matter back to the first appellate authority for disposal of appeal on merits.
5. The appeal is, thus, allowed by way of remand.
(Operative part of the order pronounced in open court on 23rd January 2025)
Notes:-
1[order-in-appeal no. PIC/ST-I/MUM/100/2016 dated 30th January 2017]
