Sub-Limitation for filing appeal before Commissioner(Appeals)-Section 85(3A) of the Finance Act, 1994-three months and 90 days doesn’t mean same thing-difference between the word “filed” and “presented” -period how to be computed-

Citation-Skoda Auto Volkswagen India Pvt ltd Vs Commissioner(Appeals) and another
Date-12th March 2021
Court-Bombay High Court

In a photofinish kind of a situation where the appellant having received an order on 30th August 2019 filed the appeal with Commissioner(Appeals) by speed post on 02-12-2019 which was received by the said Commissioner on 04.12.2019, thus beyond 90 days . The law provides the appeal to be filed within two months and power of condonation is available for another one month and the department rejected the petition for condonation of delay which was challenged before the court. The court noted that as per Section 85(3A) of the Finance Act, 1994 the appeal was required to be presented within two months of the date of receipt of the order in original. However, the said limitation period of two months can be extended by a further period of one month if the appellate authority is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of two months. The court thereafter noted that at first blush the said provision appears to be Pari materia to the provisions of Central Excise but it is not really so as the said section uses the word “presented” where as the Central Excise law uses the word “filed”. Moreover while central excise act uses the period of limitation as 60 days and 30 days where as the finance act 1994 uses the the period of limitation as two month and one month. There is a difference between three months and ninety days and it cannot be used interchangeably. The court after noticing catena of Supreme Court decisions in this regard observed that when the period prescribed is three months (as contrasted from 90 days) from a specific date, the said period would expire in the third month on the date corresponding to the date upon which the period starts. As a result, depending on the months, it may mean 90 days or 91 days or 92 days or 89 days. Finally the court held that in view of the word “presented” the appeal which was despatched on 02.12.2019 was within 3 months even though it was not within 90 days and as such the condonation of delay has to be seen from this angle.

The said decision also discussed and distinguished the famous decision of Apex Court in Singh Enterprises.

In the matter of calculating days, month, time, calendar months etc this judgement will be of definite help in the context of omnibus laws.

Ramesh Patodia
13-03-2021