# M/S Abhishek Trading Corporation, Varanasi v. Commissioner (Appeals), CGST & Central Excise Appeal Commissionerate, Allahabad & Anr

- **Citation:** (2024) 2 ILRA 193
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-01-19
- **Case number:** Writ Tax No. 1394 of 2023
- **Bench:** Shekhar B. Saraf
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-abhishek-trading-corporation-varanasi-v-commissioner-appeals-cgst-central-51410
- **Pages:** 4

## Headnote

Law
-
Central
Goods
and
Services Tax Act, 2017 - Section 107 -
Limitation Act, 1963 - Section 5 - Delay in
Filing Appeal - Petitioner challenged appellate
order dated 28.08.2023 dismissing appeal as
time-barred - Held, appeal filed on 20.07.2023
against order communicated on 13.10.2021
194 INDIAN LAW REPORTS ALLAHABAD SERIES
(over 20 months delay) was beyond the
statutory limit of three months plus one-month
condonable period under Section 107 - Singh
Enterprises Vs Commissioner of Central Excise
and Commissioner of Customs and Central
Excise Vs Hongo India Pvt. Ltd. followed,
holding that appellate authority lacks power to
condone delay beyond 30 days after the initial
60-day period, excluding Section 5 of Limitation
Act - CGST Act, as a special statute, is a selfcontained
code
with
inbuilt
limitation
mechanism, impliedly excluding Section 5 - No
interference warranted under Article 226, as
delay undisputed and statutory bar clear. (Para
4-7)

Writ petition dismissed.

List of Cases Cited:

## Text

2 All. M/S Abhishek Trading Corporation, Varanasi Vs. Commissioner (Appeals), CGST &
 Central Excise Appeal Commissionerate, Allahabad & Anr.
193
legal frameworks that for penalties to be
justly
imposed,
there
must
be
a
demonstrated actual intent to evade tax.
This principle underscores the importance
of distinguishing technical errors from
deliberate
attempts
to
evade
tax
obligations. Penalties should be reserved
for cases where an intentional act to
defraud the tax system is evident, rather
than for inadvertent technical errors. The
legal foundation for this principle lies in
the recognition that taxation statutes are
not designed to punish inadvertent mistakes
but rather deliberate acts of non-compliance.
The burden of proof, therefore, rests on tax
authorities to establish the actual intent to
evade tax before imposing penalties on
taxpayers. This safeguards individuals and
entities from punitive measures arising from
honest mistakes, administrative errors, or
technical discrepancies that lack any malicious
intent. In the judgments cited above, the Courts
therein have emphasized upon the need for a
meticulous examination of the facts and
circumstances surrounding each case to
establish the presence or absence of intentional
tax evasion.

20. To conclude, the requirement of
intent to evade tax for the imposition of
penalties is a fundamental principle that
underpins the fairness and integrity of taxation
systems. Recognising the distinction between
technical errors and intentional evasion is
essential for maintaining a balanced and
equitable approach to tax enforcement. As
nations continue their pursuit of effective tax
administration,
upholding
this
principle
becomes paramount in fostering voluntary
compliance, preserving trust in the tax system,
and ensuring the judicious use of regulatory
powers."

8. On the perusal of the above principles,
it is clear that intention to evade tax is sine qua
non before imposition of penalty. In present
case the department has failed to establish any
such intention whatsoever. Furthermore, the
Appellate Authority has failed to look into all
the documents that were produced by the
petitioner to rebut the allegation of the
department with regard to intention to evade
tax.

9. In light of the same, impugned orders
dated June 22, 2019 and June 22, 2018 are
quashed and set aside. The writ petition is
allowed. Consequential reliefs to follow.

10. Any amount that has been deposited
by the petitioner to be refunded within a period
of four weeks from date.
----------
(2024) 2 ILRA 193
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.01.2024

BEFORE

THE HON'BLE SHEKHAR B. SARAF, J.

Writ Tax No. 1394 of 2023

M/S
Abhishek
Trading
Corporation,
Varanasi ...Petitioner
Versus
Commissioner (Appeals), CGST & Central
Excise Appeal Commissionerate, Allahabad
& Anr. ...Respondents

Counsel for the Petitioner:
Sri Suyansh Agrawal

Counsel for the Respondents:
C.S.C., Sri Parv Agarwal

Taxation
Law
-
Central
Goods
and
Services Tax Act, 2017 - Section 107 -
Limitation Act, 1963 - Section 5 - Delay in
Filing Appeal - Petitioner challenged appellate
order dated 28.08.2023 dismissing appeal as
time-barred - Held, appeal filed on 20.07.2023
against order communicated on 13.10.2021
194 INDIAN LAW REPORTS ALLAHABAD SERIES
(over 20 months delay) was beyond the
statutory limit of three months plus one-month
condonable period under Section 107 - Singh
Enterprises Vs Commissioner of Central Excise
and Commissioner of Customs and Central
Excise Vs Hongo India Pvt. Ltd. followed,
holding that appellate authority lacks power to
condone delay beyond 30 days after the initial
60-day period, excluding Section 5 of Limitation
Act - CGST Act, as a special statute, is a selfcontained
code
with
inbuilt
limitation
mechanism, impliedly excluding Section 5 - No
interference warranted under Article 226, as
delay undisputed and statutory bar clear. (Para
4-7)

Writ petition dismissed.

List of Cases Cited:

1. Singh Enterprises Vs Commissioner of Central
Excise, Jamshedpur; (2008) 3 SCC 70

2. Commissioner of Customs and Central Excise
Vs Hongo India Pvt. Ltd.; (2009) 5 SCC 791

3. Punjab Fibres Ltd.; (2008) 3 SCC 73

(Delivered by Hon'ble Shekhar B. Saraf, J.)

1. Heard Sri Suyash Agarwal, learned
counsel for the petitioner, Sri Parv
Agarwal, learned counsel for respondent
No.1 and learned Standing Counsel for the
State.

2. This is a writ petition under Article
226 of the Constitution of India wherein the
petitioner is aggrieved by the order dated
August 28, 2023 passed by the appellate
authority
being
the
Commissioner
(Appeals), CGST and Central Appeal
Commissionerate, Allahabad under Section
107 of the Central Goods and Services Tax
Act, 2017 (hereinafter referred to as "the
Act").

3. By the aforesaid order, the
appellate authority dismissed the appeal
filed by the petitioner on the ground that
the same was time barred as it was filed
beyond the period of four months. At
paragraph 3.1 of the aforesaid order, the
appellate authority has clearly pointed out
that the petitioner has received the order
dated October 13, 2021, whereas the appeal
was filed on July 20, 2023, that is, after the
period of more than 20 months and way
beyond the time prescribed under Section
107 of the Act.

4. Upon perusal of the memo of
appeal filed by the petitioner, it is clear that
the order was communicated on October
13, 2021, as admitted by the petitioner
itself. It is further to be noted that the order
cancelling the registration was passed even
earlier on January 22, 2021 and had been
uploaded on the portal. As there is no
dispute with regard to communication of
the order and the fact that the appeal was
filed beyond the time prescribed, this Court
under the extraordinary jurisdiction cannot
interfere with the appellate authority's order
as the application of Limitation Act, 1963
does not apply to Section 107 of the Act.

5. The Supreme Court in Singh
Enterprises v. Commissioner of Central
Excise, Jamshedpur and Others reported
in (2008) 3 SCC 70, while dealing with a
similar issue as in the present case, has held
as under:

"8. The Commissioner of Central
Excise (Appeals) as also the Tribunal being
creatures of statute are not vested with
jurisdiction to condone the delay beyond
the permissible period provided under the
statute. The period up to which the prayer
for condonation can be accepted is
statutorily provided. It was submitted that
the logic of Section 5 of the Limitation Act,
1963 (in short ?the Limitation Act?) can be
2 All. M/S Abhishek Trading Corporation, Varanasi Vs. Commissioner (Appeals), CGST &
 Central Excise Appeal Commissionerate, Allahabad & Anr.
195
availed for condonation of delay. The first
proviso to Section 35 makes the position
clear that the appeal has to be preferred
within three months from the date of
communication to him of the decision or
order. However, if the Commissioner is
satisfied that the appellant was prevented
by sufficient cause from presenting the
appeal within the aforesaid period of 60
days, he can allow it to be presented within
a further period of 30 days. In other words,
this clearly shows that the appeal has to be
filed within 60 days but in terms of the
proviso further 30 days' time can be
granted by the appellate authority to
entertain the appeal. The proviso to subsection (1) of Section 35 makes the position
crystal clear that the appellate authority
has no power to allow the appeal to be
presented beyond the period of 30 days.
The language used makes the position clear
that the legislature intended the appellate
authority to entertain the appeal by
condoning delay only up to 30 days after
the expiry of 60 days which is the normal
period for preferring appeal. Therefore,
there is complete exclusion of Section 5 of
the Limitation Act. The Commissioner and
the High Court were therefore justified in
holding that there was no power to
condone the delay after the expiry of 30
days' period."

6. In Commissioner of Customs and
Central Excise v. Hongo India Private
Limited and Another reported in (2009) 5
SCC 791, the Supreme Court has reiterated
its stand and held as under:

"31. In this regard, it is useful to
refer to a recent decision of this Court in
Punjab Fibres Ltd. [(2008) 3 SCC 73] The
Commissioner of Customs, Central Excise,
Noida was the appellant in this case. While
considering
the
very same
question,
namely, whether the High Court has power
to condone the delay in presentation of the
reference under Section 35-H(1) of the Act,
the two-Judge Bench taking note of the said
provision and the other related provisions
following Singh Enterprises v. CCE [(2008)
3 SCC 70] concluded that: (Punjab Fibres
Ltd. case [(2008) 3 SCC 73] , SCC p. 75,
para 8)

8. ...the High Court was justified
in holding that there was no power for
condonation of delay in filing reference
application.?

32. As pointed out earlier, the
language used in Sections 35, 35-B, 35-EE,
35-G and 35-H makes the position clear
that an appeal and reference to the High
Court should be made within 180 days only
from the date of communication of the
decision or order. In other words, the
language used in other provisions makes
the position clear that the legislature
intended
the
appellate
authority
to
entertain the appeal by condoning the
delay only up to 30 days after expiry of 60
days which is the preliminary limitation
period for preferring an appeal. In the
absence of any clause condoning the delay
by showing sufficient cause after the
prescribed period, there is complete
exclusion of Section 5 of the Limitation Act.
The High Court was, therefore, justified in
holding that there was no power to
condone the delay after expiry of the
prescribed period of 180 days."

7. The Central Goods and Services
Act is a special statute and a self-contained
code by itself. Section 107 of the Act has
an inbuilt mechanism and has impliedly
excluded the application of the Limitation
Act. It is trite law that Section 5 of the
Limitation Act, 1963 will apply only if it is
extended to the special statute. Section 107
of the Act specifically provides for the
196 INDIAN LAW REPORTS ALLAHABAD SERIES
limitation and in the absence of any clause
condoning the delay by showing sufficient
cause after the prescribed period, there is
complete exclusion of Section 5 of the
Limitation Act. Accordingly, one cannot
apply Section 5 of the Limitation Act, 1963
to the aforesaid provision.

8. In light of the above, no
interference is required in this petition and
the same is, accordingly, dismissed.
----------
(2023) 2 ILRA 196
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 30.01.2024
BEFORE

THE HON'BLE SHAMIM AHMED, J.

Matters Under Article 227 No. 414 of 2024

Raj Kumar Saroj ...Petitioner
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioners:
Ashok Kumar Singh, Mukesh Sharma

Counsel for the Respondents:
G.A.

Criminal
Law
-
Police
Act
1861
-
Sectiontion 29 -Indian Penal Code,1860Sectiontion 406-Charge against the petitioner
is of having breached the court's order-
impugned order punishing the petitioner under
Sectiontion 29 of the U.P. Police Act and lodging
F.I.R. against the petitioner u/s 406 I.P.C. -the
power to examine such a complaint has to be
exercised by the District Magistrate in case the
information has been received by a Magistrate
other than a District Magistrate-in the event the
Magistrate himself takes notice of -then the
matter will have to be sent to another
Magistrate for conducting the enquiry after
putting the Officer to notice- same Magistrate
cannot be the witness and the judge himself-
procedure adopted by the learned Magistrate
was not in conformity with Sectiontion 29 of the
Police Act 1861 read with the Regulations.
Petition allowed. (E-9)

Cases cited:

1. Pramod Kumar Sharma Vs St. of U.P. &
ors.(Special Appeal No.1453 of 2010)

(Delivered by Hon'ble Shamim Ahmed, J.)

1. Heard Sri Ashok Kumar Singh,
learned counsel for the petitioner and Sri
S.P. Tiwari, learned A.G.A.-I for the State
as well as perused the record.

2. The instant petition under Article
227 of The Constitution of India has been
filed with following relief:-

"Wherefore,
it
is
most
respectfully prayed that this Hon'ble Court
may kindly be pleased to set aside the
impugned order dated 19.01.2024 passed
in Misc. Case No.554/2023 (State Vs.
S.H.O. Mankapur, Gonda) by the Court of
Additional District and Session Judge,
Court No.3, Gonda."

3. Learned counsel for the petitioner
submits that on 23.05.2015, police of
Police Station Mankapur, District Gonda
recovered a Truck bearing Registration No.
UP-32-A-9016 and an F.I.R. was lodged as
Case Crime No. Nil/2015, under Sections
41, 411, 413, 420, 467, 468, 487 I.P.C. at
Police Station Mankapur, District Gonda,
which was later on converted to Case
Crime No.0999/2015.

4. He further submits that thereafter
the matter was investigated by the
Investigating Officer and charge sheet was
submitted before the learned court below.
He further submits that during trial on
23.08.2023, the court of learned Additional