Custom, Excise & Service Tax Tribunal
Shree Precoated Steel Ltd vs Commissioner Of Customs (Export) on 2 December, 2013
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL,WEST ZONAL BENCH AT MUMBAI COURT No. II Appln.No.C/COD/98787/13 APPEAL No.C/89200/13 (Arising out of Order-in-Appeal No.12/MCH/AC/EXP/2011 dated 27/01/2011 passed by Commissioner of Customs (Appeals), Mumbai) For approval and signature: Honble Mr. P.R. Chandrasekharan, Member (Technical) Honble Mr. Anil Choudhary, Member (Judicial) 1. Whether Press Reporters may be allowed to see :No the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982? 2. Whether it should be released under Rule 27 of the :Yes CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? 3. Whether Their Lordships wish to see the fair copy :Seen of the Order? 4. Whether Order is to be circulated to the Departmental :Yes authorities? ========================================
Shree Precoated Steel Ltd., Appellant Vs. Commissioner of Customs (Export), Respondent Mumbai Appearance:
Shri.Jitu Motwani, Advocate for appellant Shri.Devendra Nagvenkar, Addl. Comm. (AR) for respondent CORAM:
Honble Mr. P.R.Chandrasekharan, Member (Technical) Honble Mr.Anil Choudhary, Member (Judicial) Date of Hearing : 02/12/2013 Date of Decision : 02/12/2013 ORDER NO Per: P.R.Chandrasekharan
1. The appeal and miscellaneous application are directed against order-in-appeal No.12/MCH/AC/EXP/2011 dated 27/01/2011 passed by the Commissioner of Customs (Appeals), Mumbai.
2. The application for condonation of delay seeks condonation of 984 days delay in filing of the appeal. The reasons stated for the delay is that the appellant received the order-in-appeal on 07/02/2011 and the matter was allotted to Shri Hiresh Dhakan, Assistant Company Secretary of the applicants parent company, i.e., M/s.Ajmera Reality & Infra India Ltd. Meanwhile, the assets and liabilities of the applicant, including the entire workforce were taken over by M/s.Essar Steels Ltd. Subsequently, Shri Hiresh Dhakan resigned from the company and he was relieved from his duties on 28/02/2011. Due to the resignation of Shri Hiresh Dhakan, the matter went un-noticed, and hence, no further action could be taken against the impugned order. It was only when Shri N.B.Pinglay, Commercial Advisor to the applicant, joined in May 2013 the lapse was noticed and thereafter the appeal has been filed on 18/10/2013. It is submitted that the appellant has an excellent case on merits and therefore, the delay should be condoned.
3. The Ld. Counsel for the appellant placed reliance on the decision of the Honble Apex Court in the case of Collector, Land Acquisition Anantnag & Another Vs. MST. Katiji and Others 1987 (28) ELT 185 (SC) and prays that the ratio of the said decision should be applied and a liberal approach should be adopted in condonation of the delay in the light of the principles laid down in the said decision. Reliance is also placed on the decision of the Honble Apex Court in the case of State of Nagaland Vs. Lipok AO 2005 (183) ELT 337 (SC) wherein it was held that some latitude is permissible due to procedural red tape in Government functioning and also on account that if appeal is dismissed, public interest suffers. In the light of these decisions, it is prayed that the delay should be condoned.
4. The Ld. Additional Commissioner (AR) appearing for the Revenue submits that Shri Pinglay was with the appellant company even when the appellant was before the Commissioner (Appeals) and that fact can be seen from the impugned order wherein it has been recorded that Shri Pinglay along with Harish Dhakan attended the personal hearing. Therefore, the argument that it was only after Shri Pinglay, joined the appellant in May 2013, the mistake was noticed is contrary to facts, as Mr.Pinglay was very much with the appellant company at the relevant time. Therefore, it is only a lame excuse for not filing the appeal in time.
5. We have carefully considered the submissions made by both the sides.
5.1 The only ground adduced in the COD application is that Shri Hiresh Dhakan, who was dealing with the matter left the company and therefore, nobody else was aware of the pendency of the appeal and only when Mr.Pinglay joined in May 2013 the matter was brought to the notice. There is no explanation why after Mr.Hiresh Dhakan left anybody else could take necessary action in filing the appeal. Even after Mr.Pinglay joined in May 2003, there is a delay of six months and the appeal has been filed only in 18/10/2013. From the records,it is seen that Mr.Pinglay was with the appellant firm all through and therefore, the excuse offered is only an after thought and cannot be accepted. Thus, there is no satisfactory explanation for the delay.
5.2 The Honble Apex Court in a recent decision in the case of Office of the Chief Post Mater General Vs. Living Media India Ltd. 2012-TIOL-123-SC-LMT had held that in the absence of reasonable and acceptable explanation, the delay cannot be condoned mechanically merely because the government or a wing of the Government is a party. It was further held that law of limitation undoubtedly binds everybody, including the Government and unless there is a reasonable and acceptable explanation for delay and there was a bonafide bona fide effort, there is no need to accept the usual explanation that the file was pending for several months/years due to considerable degree of procedural red-tape in the process. In Pundlik Jalam Patil (dead) by LRS Vs. Executive Engineer, Jalgaon Medium Project and Another 2008 (17) SCC 448, the Honble Apex Court held as follows:
..The evidence on record suggests neglect of its own right for long time in preferring appeals. The court cannot enquire into belated and stale claims on the ground of equity. Delay defeats equity. The court helps those who are vigilant and do not slumber over their rights. It was further held that:
It needs no restatement at our hands that the object for fixing time-limit for litigation is based on public policy fixing a lifespan for legal remedy for the purpose of general welfare. They are meant to see that the parties do not resort to dilatory tactics but avail their legal remedies promptly. Salmond in his jurisprudence states that the laws come to the assistance of the vigilant and not of the sleepy.
Again in the case of N.Balakrishnan Vs. M.Krishnamurthy 1998 (7) SCC 123, the Honble Apex Court held as follows:
It is axiomatic that condonation of delay is a matter of discretion of the court Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Some times delay of the shortest range may be un-condonable due to want of acceptable explanation whereas in certain other cases delay of very long range can be condoned as the explanation thereof is satisfactory.
In the said decision it was further held that:
Rule of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life-span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium (it is for the general welfare that a period be put to limitation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time.
5.3 The time limit specified for filing appeal before this Tribunal in respect of Customs matters is only three months from the date of receipt of the order. In the present case there is no dispute that the appellant received the order on 07/02/2011 and consequently, the time limit to file the appeal expired on 06/05/2011, whereas the appeal has been filed before us on 18/10/2013, after a lapse of more than 2 = years. The explanation given for the delay is also quite bald and totally unsatisfactory.
6. In these circumstances, we do not find any reason to condone the delay and accordingly, dismiss the application for condonation of delay. Consequently, the appeal also gets dismissed.
(Operative part of the order pronounced in Court) (Anil Choudhary) Member (Judicial) (P.R. Chandrasekharan) Member (Technical) pj 1 6