- (1.) By this order, we shall decide Civil Writ Petition Nos. 12678, 14115, 16438 and 17346 of 2012 as they involve adjudication of similar questions. Facts are, however, being taken from Civil Writ Petition No. 12678 of 2012. The petitioner prays that proviso to Section 85(3) of the Finance Act, 1994 (hereinafter referred to as the "Act"), may be declared ultra vires or may be read down. The petitioner also prays for setting aside order dated 10-11-2010, imposing penalty and order dated 1-3-2012 passed in appeal, whereby the petitioner's appeal was dismissed for having been filed beyond the condonable period of limitation.
(2.) Counsel for the petitioner submits that the proviso to Section 85(3) of the Act, is ultra vires of the right to seek adjudication by filing an appeal. The proviso provides that the appellate authority shall not condone delay beyond three months, thereby placing an illegal impediment on the right to file an appeal. The proviso may either be held to be ultra vires of the right to file an appeal or may be read down, in cases where orders are inherently without jurisdiction. Counsel for the petitioner further contends that the petitioner having deposited Service Tax before issuance of the show cause notice, the order imposing penalty is without jurisdiction and, therefore, the impugned order may, accordingly, be set aside or delay in filing the appeal may be condoned.
(3.) Counsel for the respondents submits that the right to file an appeal emanates from a statute. The legislature has, in its wisdom, confined the power to condone delay to a period of three months beyond the period prescribed for filing an appeal and, therefore, power under Article 226 of the Constitution cannot be exercised to condone delay. Counsel for the respondents relies upon a Full Bench judgment in LPA No. 377 of 2012, (State of Haryana v. Hindustan Machine Tools Limited and Others), decided on 30-9-2014, in support of the latter argument.;