Custom, Excise & Service Tax Tribunal
Commissioner Of Customs, Central ... vs Shri K Venkateswarlu on 28 February, 2014
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH BANGALORE Final Order No. 20733 / 2014 Application(s) Involved: E/COD/28668/2013 in E/28050/2013-SM Appeal(s) Involved: E/28050/2013-SM [Arising out of Order-in-Appeal No.60/2012 (G) CE dated 22/11/2012 passed by Commissioner of Central Excise and Service Tax , GUNTUR( Appeal) ] Commissioner of Customs, Central Excise and Service Tax Guntur P.B.NO. 331, C.R.BUILDING, KANNAVARI THOTA, GUNTUR - 520004 ANDHRA PRADESH Appellant(s) Versus Shri K Venkateswarlu Sri Gopalakrishna General Stores, D. No. 11-49-290, Sivalayam Street, VIJAYAWADA - 520001 AP Respondent(s)
Appearance:
Mr.S.Teli, Dy. Commissioner (AR) For the Appellant Mr. R. Muralidhar, Advocate B.201, High Rise Apartments 1-3-1024/8, Lower Tankbund Road, Hyderabad - 500 080.
For the Respondent CORAM:
HON'BLE SHRI S.K. MOHANTY, JUDICIAL MEMBER Date of Hearing: 28/02/2014 Date of Decision: 05/06/2014 Order Per : S.K. MOHANTY There is a delay of 243 days in filing appeal by the Revenue. No satisfactory explanation was furnished justifying condonation of delay. As such, this Tribunal vide Interim Order No. 16/2014 dated 20.01.2014 has directed the Revenue to file a miscellaneous application on 28.02.2014, explaining the reasons for delay. When the matter called out for hearing on 28.02.2014, the learned A.R. for the Revenue has placed the letter/miscellaneous application dated 07.02.2014 of the Commissioner of Central Excise, Guntur before this Tribunal, wherein the reason for condonation of delay has been explained. The reason for delay as explained by the Commissioner is reproduced as under:-
It is to submit that the OIA No. 60/2012 dt 22.11.2012 was received in the Hqrs. Commissionerate office, Guntur on 3.12.2012. Thereafter, a prolonged correspondence was made with DGCEI regarding certain clarifications and requesting certain documents. The case detecting authority, DGCEI ,communicated to the Chief Commissioner's office Visakhapatnam Zone who in turn, directed the Committee to file an appeal against the impugned order which was received after considerable time. In fact, the DGCEI letter F. No. 574/CE/45/2013/lnv. dated 22.4.2013 from CCO vide letter dated 16.5.2013 has been received in reviews section without enclosures. Again, the receipt of letter dated 16.5.2013 with enclosures have been received on 3.9.2013 and a report was submitted to the Chief Commissioner's office on 3.9.2013 itself.. Reply letter dated 6.9.2013 of the Chief Commissioner's office, Visakhapatnam was received in the Reviews section on 10.9.2013. Authorisation is given by the Commissioner, Guntur on 11.9.2013 and the authorization file was sent to the Tirupati commissioner for approval on 17.9.2013.
After all this correspondence, the Jurisdictional Assistant Commissioner, Vijayawada has filed the appeal immediately on receipt of authorization dated 25.9.2013 issued by the Committee of Commissioners, which was duly communicated by the CCE, Guntur on 21.10.2013 and the jurisdictional Assistant Commissioner has preferred an appeal with Hon'ble CESTAT on 25.10.2013.There was no delay and the file/issue kept on moving and hence, it is to submit that, technically speaking, there is no delay in the filing of the appeal. It is further submitted that since as per the statutory limit of 3 months, the Departmental appeal could not be filed due to the very unavoidable reasons as stated and enumerated above, the a ppeal was filed with condonation of dealt' (COD) immediately on receipt of the authorization.
2. The learned A.R. appearing for the Revenue submitted that the delay in filing the appeal beyond prescribed statutory time limit is not deliberate and the appellant was acting bona fide; as such, refusal to condone the same will result in miscarriage of justice. In support of the stand for condonation of delay, the learned A.R. relied upon the Judgment delivered by the Honble Supreme Court in the case of State of Nagaland vs. Lipok Ao reported in 2005 (183) ELT 337 (S.C.) and the decision of the Tribunal in the case of Commissioner of Central Excise, Delhi-III vs. Grand Prints Pvt. Ltd., reported in 2009 (240) ELT 631 (Tri.-Del.).
3. The learned Counsel appearing for the respondent, on the other hand, submitted that the delay cannot be condoned in absence of any reasonable cause furnished by the Revenue for late filing of appeal. During the course of hearing, the learned counsel filed a date chart, showing the sequential events taken place between receipt of the adjudication order and filing of appeal before this Tribunal belatedly. The date chart and the remarks recorded therein are reproduced below:-
Date of OIA 22.11.2012 No. of days delay Remarks Receipt of OIA in Commissionerate 3.12.2012 Normal period by which appeal should have been filed 3.3.2013 No documentary evidence regarding the action taken during first 3 months towards formation of Committee of Commissioners Date of OIA 22.11.2012 No. of days delay Remarks Receipt of letter F. No.574/CE/45/2013/Inv. Dt. 22.4.2013 of DGCEI from CCO vide letter dated 16.5.2013 without enclosures. 16.5.2013 163 days (5 months 12 days) from the receipt of OIA Letter from DGCEI not enclosed to the appeal/COD application.
Receipt of letter dt. 16.5.2013 with enclosures i.e., DGCEIs letter dated 22.4.2013 3.9.2013 110 days (3 months 18 days from 16.5.2013) Enclosures DGCEI not enclosed with the appeal/COD application Report submitted to CCO 3.9.2013 Letter dated .09.2013 received from CCO directing to file appeal received in review section on 10.9.2013 10.9.2013 Letter from CCO dt. 6.9.2013 received by Review Section not enclosed with the appeal/COD application Date of authorization 11.9.2013 192 days (6 months 8 days from the receipt of OIA) No evidence that authorization was signed on this date Date on which file sent for circulation to Tirupathi Commissioners approval 17.9.2013 Correspondence not enclosed Loss of file during the transit 18.9.2013 Date on which loss reported and issue of not traceable certificate by Govt. Railway Police 20.9.2013 Date of re-approval of authorization consequent on reconstruction of file 25.9.2013 207 days (6 months 23 days from the receipt of OIA) Commissioner Guntur has dated his signature as 26th Sept. and Commissioner Tirupati signature is not dated.
Further, to support his argument that the delay cannot be condoned in the facts and circumstances of the case, the learned counsel relied on the judgment of Honble Supreme Court rendered in the case of Office of the Chief Post Master General vs. Living Media India Ltd. reported in 2012 (277) ELT 289 (S.C.) and various decisions of the Tribunal.
4. Heard both sides, considered the submissions and perused the case records. Sub-section (3) of Section 35B of the Central Excise Act, 1944 mandates filing of appeal before the Appellate Tribunal within three months from the date on which the order sought to be appealed against is communicated to the aggrieved party. The discretion has been vested on the Appellate Tribunal under sub-section (5) of the said section for admittance of an appeal, if filed beyond the period of three months, subject to satisfaction that there was sufficient cause for not presenting the appeal within the limitation period. Reading of the statutory provision makes the position clear that the legislative intent behind prescribing the period of limitation normally is to create a bar in institution of the proceedings upon expiry of the period except for the exceptions specifically provided in that provision itself; and that delay cannot be condoned as a matter of right or on the mere request of the party/appellant. For exercising the discretion of delay condonation, the party has to convince the Court with the help of substantial evidence that there was sufficient cause in not presenting the appeal within the stipulated time frame.
4.1 It is apparent from the record that the Order-in-Appeal was communicated to the Commissioner of Central Excise, Guntur on 03.12.2012 and the appeal was filed before this Tribunal on 04.11.2013, resulting in delay of 243 days. The reason for delay has not at all been explained by the Revenue with any plausible evidence, which is manifest from the above date chart provided by the counsel for respondent. Hence, it cannot be said that the Revenue has made out a case for condonation of delay in late filing of appeal. It is a settled principle of law that delay cannot be condoned as a matter of right or on the request of the party, unless sufficient cause is shown, entitling the Court to exercise its discretion to condone the delay, which is entirely absent in this case.
4.2 The Hon'ble Supreme Court in the case of Office of the Chief Post Master General vs. Living Media India Ltd. (supra) has dismissed the appeal on the ground of delay. The principles decided therein are squarely applicable to the facts of the present case. The relevant paragraphs of the said judgment are extracted herein below:
11.?.. Even according to the deponent, their counsel had applied for the certified copy of the said judgment only on 8-1-2010 and the same was received by the Department on the very same day. There is no explanation for not applying for certified copy of the impugned judgment on 11-9-2009 or at least within a reasonable time. The fact remains that the certified copy was applied only on 8-1-2010, i.e. after a period of nearly four months. In spite of affording another opportunity to file better affidavit by placing adequate material, neither the Department nor the person in-charge has filed any explanation for not applying the certified copy within the prescribed period. The other dates mentioned in the affidavit which we have already extracted, clearly show that there was delay at every stage and except mentioning the dates of receipt of the file and the decision taken, there is no explanation as to why such delay had occasioned. Though it was stated by the Department that the delay was due to unavoidable circumstances and genuine difficulties, the fact remains that from day one the Department or the person/persons concerned have not evinced diligence in prosecuting the matter to this Court by taking appropriate steps.
12.?It is not in dispute that the person(s) concerned were well aware or conversant with the issues involved including the prescribed period of limitation for taking up the matter by way of filing a special leave petition in this Court. They cannot claim that they have a separate period of limitation when the Department was possessed with competent persons familiar with court proceedings. In the absence of plausible and acceptable explanation, we are posing a question why the delay is to be condoned mechanically merely because the Government or a wing of the Government is a party before us. Though we are conscious of the fact that in a matter of condonation of delay when there was no gross negligence or deliberate inaction or lack of bona fide, a liberal concession has to be adopted to advance substantial justice, we are of the view that in the facts and circumstances, the Department cannot take advantage of various earlier decisions. The claim on account of impersonal machinery and inherited bureaucratic methodology of making several notes cannot be accepted in view of the modern technologies being used and available. The law of limitation undoubtedly binds everybody including the Government.
13.?In our view, it is the right time to inform all the government bodies, their agencies and instrumentalities that unless they have reasonable and acceptable explanation for the delay and there was bona fide effort, there is no need to accept the usual explanation that the file was kept pending for several months/years due to considerable degree of procedural red-tape in the process. The government departments are under a special obligation to ensure that they perform their duties with diligence and commitment. Condonation of delay is an exception and should not be used as an anticipated benefit for government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few. Considering the fact that there was no proper explanation offered by the Department for the delay except mentioning of various dates, according to us, the Department has miserably failed to give any acceptable and cogent reasons sufficient to condone such a huge delay. Accordingly, the appeals are liable to be dismissed on the ground of delay. 4.3 The judgment of Hon'ble Supreme Court in the case of State of Nagaland vs. Lipok Ao (supra), cited by the appellant-revenue has no application to the facts of the present case, in as much as, in the said cited judgment, the appellants were not negligent and have diligently pursued for filing the appeal. However, in the present case, negligent of the appellant-Revenue is patent because of their casual approach in filing of appeal. Thus, the ratio of judgment relied upon by the appellant-Revenue does not apply to the facts of this case.
5. I view of the above, I do not find any merit in the delay condonation application and accordingly, the same is dismissed along with the appeal.
(Order has been pronounced in open court on 05/06/2014.) S.K. MOHANTY JUDICIAL MEMBER rv 5