In W.P.(T) No.493 of 2022-JHA HC- Delay, if any, is condonable up to 30 days beyond period of 60 days u/s 85(3A) of Finance Act, 1994: Jharkhand HC
Justices Aparesh Kumar Singh & Deepak Roshan [04-01-2023]

 Read Order: GLOBAL CONSTRUCTION AND ORS V. UNION OF INDIA AND ORS 

Mansimran Kaur

Ranchi, January 30, 2023:  Under Section 85 of the Finance Act, 1994 the statutory limit of 60 days is prescribed for preferring an appeal, observes Jharkhand High Court 

While dealing with the present writ petition, wherein the petitioners not only challenged the appellate order, but also sought quashing of the show-cause notice dated August 6, 2017, the order-in-original dated December 18, 2018 and the garnishee notice dated September  30, the Jharkhand High Court observed that since  the track consignment report had an incomplete address of the petitioner, valid service of notice of the order in original cannot be presumed.  

The Division bench of Justice Aparesh Kumar Singh and Justice Deepak Roshan allowed the instant appeal by observing that the presumption of proof of service of notice is a rebuttable piece of evidence and the track consignment report having an incomplete address of the petitioner, valid service of notice of the order in original cannot be presumed. 

The writ petitioners approached this Court against the garnishee notice dated September 30, 2021 issued under Section 79 of the Central Goods & Services Tax Act, 2017 whereby the respondent Deputy Commissioner (Preventive), Central Goods & Services Tax and Central Excise, Ranchi had frozen the bank account of the petitioners. 

The writ petition was disposed of without going into the merits of the case since the petitioners had approached the appellate authority against the order-in-original dated  December  18, 2018 and immediately on the next date i.e.  September  30, 2021 the impugned garnishee notice had been issued during pendency of the appellate proceedings. 

By order dated November 3, 2021 passed in the said writ petition the petitioners were granted liberty to move the authority that had issued the garnishee notice and pray for its recall. It was also left open to the petitioners to approach the appellate authority for expeditious disposal of appeal. 

The appeal was  dismissed on grounds of limitation as being beyond the statutory limit of 60 days prescribed under Section 85 of the Finance Act, 1994 and also beyond the condonable period of 30 days under Section 85(3A) of the Finance Act, 1994 through the impugned order dated December  23, 2021 passed by the Commissioner (Appeals), Central Goods & Services Tax and Central Excise, Ranchi . 

After considering the submissions, the Court noted that the two facts  that emerged  from the pleadings on records which cannot be ignored were, firstly  that the certified copy of the impugned order was provided to the appellant on  December  19, 2020 by the Adjudication Branch of Central Goods & Services Tax and Central Excise, Ranchi which means that by that time the relaxation of limitation period as per the directions of the Apex Court in Suo Motu Writ Petition ( had commenced due to the COVID lockdown.

 The other fact which emerged from the information obtained under RTI from the office of the Principal Commissioner, Central Goods & Services Tax and Central Excise, Ranchi dated January 24, 2022 was that the booking journal or the track consignment report of the speed post does not contain the complete address of the petitioner.

In view of the same, the Court noted, “the presumption of proof of service of notice is a rebuttable piece of evidence and the track consignment report having an incomplete address of the petitioner, valid service of notice of the order in original cannot be presumed”. 

It was also noted, “Under Section 85 of the Finance Act, 1994 the statutory limit of 60 days is prescribed for preferring an appeal. The delay, if any, is condonable up to 30 days beyond the period of 60 days under Section 85(3A) of the Act”. 

Hence, in light of such observations, the appeal was allowed.