The Court ruled that the delay in filing an appeal could be condoned under the Finance Act due to the extraordinary circumstances of the COVID pandemic, as extended by the Supreme Court's directive.

JUDGMENT :

DEVASHIS BARUAH, J.

1. Heard Mr. R. S. Mishra, the learned counsel appearing on behalf of the petitioner. Mr. S. C. Keyal, the learned counsel appears on behalf of the respondent Nos.1 to 4.

2. The present writ petition has been filed challenging the Order-in-Appeal No. 513/GHY(A)/COMMR/ST/DIB/2023 dated 14.09.2023, (hereinafter referred to as ‘the impugned order’) whereby the application filed for condonation of delay was rejected on the ground that there was a delay of 17 days in filing the Appeal.

3. The brief facts which led to the filing of the instant writ petition is that an Order-in-Original No.DIV/JOR/ST/01/21-22 dated 12.05.2021 was passed by the Assistant Commissioner, Central Goods and Service Tax, Jorhat whereby service tax as well as penalty and interest have been imposed upon the petitioner. The petitioner thereupon filed an Appeal on 17.06.2022. In terms with Section 85 (3A) of the Finance Act, 1994, the period for filing an Appeal is two months from the date of receipt of the decision or order of the adjudicating authority. It is also relevant to take note of that the proviso to Section 85 (3A) of the Finance Act, 1994 empowers the Commissioner of Central Excise (Appeals) to condone the delay, if filed within a further period of one month.

4. The Order-in-Original was received by the petitioner on 22.05.2021. The Appeal ought to have been filed on or before 22.07.2021. However, the Appeal was filed on 17.06.2022.

5. At this stage, it is also pertinent to take note of that during that period, on account of the COVID pandemic, the Supreme Court had extended the period of limitation by passing an order on 10.01.2022 in Suo Motu Writ Petition (C) No.3 of 2020. Paragraph Nos.5(I), (II) and (III) of the order dated 10.01.2022 being relevant is reproduced herein under:-

“I. The order dated 23.03.2020 is restored and in continuation of the subsequent orders dated 08.03.2021, 27.04.2021 and 23.09.2021, it is directed that the period from 15.03.2020 till 28.02.2022 shall stand excluded for the purposes of limitation as may be prescribed under any general or special laws in respect of all judicial or quasi-judicial proceedings.

II. Consequently, the balance period of limitation remaining as on 03.10.2021, if any, shall become available with effect from 01.03.2022.

III. In cases where the limitation would have expired during the period between 15.03.2020 till 28.02.2022, notwithstanding the actual balance period of limitation remaining, all persons shall have a limitation period of 90 days from 01.03.2022. In the event the actual balance period of limitation remaining, with effect from 01.03.2022 is greater than 90 days, that longer period shall apply.”

6. From a perusal of the above quoted order and more particularly 5(III), it transpires that where the limitation would have expired during the period from 15.03.2020 till 28.02.2022, notwithstanding the actual balance period of limitation remaining, all persons shall have a limitation period of 90 days from 01.03.2022. It is also mentioned that in the event of the actual balance period of limitation remaining w.e.f. 01.03.2022 is greater than 90 days, that longer period shall apply.

7. Taking into account the said directions, as the Order-in- Original was passed on 21.05.2021, i.e. during the period from 15.03.2020 to 28.02.2022, the petitioner had time till 30.05.2022 to file the Appeal.

8. It is very pertinent to take note of at this stage that vide the order passed by the Supreme Court dated 10.01.2022, the period specified in Section 85 (3A) of the Finance Act, 1994 stood extended in the facts of the instant case, till 30.05.2022. The proviso to Section 85 (3A) of the Finance Act, 1994 empowered the Appellate Authority to condo