Gujarat High Court
Union Of India & Anr vs Prayagraj Dyeing & Printing Mills Pvt ... on 31 July, 2014
Author: Bhaskar Bhattacharya
Bench: Bhaskar Bhattacharya, J.B.Pardiwala
O/OJCA/162/2014 CAV JUDGMENT
OJCA1622014Oj2.doc
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL APPLICATION NO. 162 of 2014
In
MISC. CIVIL APPLICATION NO. 146 of 2014
In
TAX APPEAL NO. 1153 of 2011
With
CIVIL APPLICATION NO. 83 of 2014
In
MISC. CIVIL APPLICATION NO. 127 of 2014
TO
CIVIL APPLICATION NO. 101 of 2014
In
MISC. CIVIL APPLICATION NO. 145 of 2014
With
MISC. CIVIL APPLICATION NO. 146 of 2014
In
TAX APPEAL NO. 1153 of 2011
With
MISC. CIVIL APPLICATION NO. 127 of 2014
In
TAX APPEAL NO. 1118 of 2011
TO
MISC. CIVIL APPLICATION NO. 145 of 2014
In
TAX APPEAL NO. 285 of 2012
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE Sd/-
MR. BHASKAR BHATTACHARYA
HONOURABLE MR.JUSTICE Sd/-
J.B.PARDIWALA
==========================================
=============== 1 Whether Reporters of Local Papers may be allowed Yes to see the judgment ?
2 To be referred to the Reporter or not ?` Yes Page 1 of 12 O/OJCA/162/2014 CAV JUDGMENT 3 Whether their Lordships wish to see the fair copy No of the judgment ?
4 Whether this case involves a substantial question No of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ? No ========================================== =============== UNION OF INDIA & ANR Versus PRAYAGRAJ DYEING & PRINTING MILLS PVT LTD.& ORS. ========================================== =============== Appearance:
MR R J OZA, SR. STANDING COUNSEL with MR. HRIDAY BUCH, ADVOCATE for the Applicants.
MR DEVAN PARIKH, MR. P.R. NANAVATI, MR. PARESH M. DAVE, MS. DILBUR CONTRACTOR, ADVOCATES for the Respondents. ========================================== =============== CORAM: HONOURABLE THE CHIEF JUSTICE MR.
BHASKAR BHATTACHARYA and HONOURABLE MR.JUSTICE J.B.PARDIWALA Date : 31/07/2014 COMMON CAV JUDGMENT (PER : HONOURABLE THE CHIEF JUSTICE MR. BHASKAR BHATTACHARYA) All these Civil Applications were heard together as the grounds for condonation of delay in filing the various Misc. Civil Applications for review are virtually the same. We, however, take the case of Civil Application No.162 of 2014 as the lead matter.
2. By these applications, the applicant/Union of India, has prayed Page 2 of 12 O/OJCA/162/2014 CAV JUDGMENT for condonation of delay of 417 days in filing the Misc. Civil Applications for review.
3. The following facts are not in dispute:-
3.1 By a common CAV judgment dated 28th September 2012, this Bench had decided 29 Tax appeals including the ones out of which the present applications arise. Those 29 Tax Appeals can be divided into two classes, namely, (i) the appeals wherein the quantum of monetary threshold limit is more than Rs.25 lakh and (ii) the appeals wherein such limit is below Rs.25 lakh.
3.2 The applicant proposed to file Special Leave Applications in the Supreme Court of India against the common order passed by this Court in nine Tax Appeals including Tax appeal No.1116 of 2011 filed by M/s. Adarsh Textile Mills. However, the applicant could not propose to file SLP in the Supreme Court in respect of other group because the quantum of revenue involved therein was below Rs.25 lakh. 3.3 According to the applicant, over the subject matters involved in these applications, the Central Board of Excise and Customs was requested to permit the applicant to file SLP even in those appeals wherein the quantum of revenue involved was below the prescribed monetary limit fixed in the instructions letter dated 17th October 2011 and that the applicant pursued the said request by representing on Page 3 of 12 O/OJCA/162/2014 CAV JUDGMENT various dates including on 6th May 2013, 26th June 2013, 12th July 2013 and 6th August 2013.
3.4 According to the applicant, they inquired from the Commissioner (Legal), Central Board of Excise and Customs, New Delhi as to whether the matter was under the consideration of the Board for filing SLP in the Supreme Court of India in all cases, irrespective of monetary limit or otherwise. The applicants have asserted in the present application for condonation of delay that the said proposal was pending even on the date of the filing of the application for review for its final decision as it appears from the last line of paragraph 3 of the application for condonation of delay. 3.5 In the meanwhile, in a similar case, namely, M/s. Vitrag Silk Mills Pvt. Ltd., another Division Bench of this Court by order dated 26th December 2012 passed in Tax Appeal No.525 of 2012 partly allowed the appeal by relying on our CAV common judgment dated 28th September 2012. In view of quantum of threshold limit of Rs.25 lakh in filing appeal in the Supreme Court being prescribed by the Central Board of Excise and Customs instructions dated 17th August 2011, the applicant filed Special Leave to Appeal being (Civil) CC No.13647 of 2013 in the Supreme Court of India. The said petition was placed for hearing before the Supreme Court on 8th August 2013 and the learned Additional Solicitor General of India, after making submissions for a while, made a request that the petitioner might be Page 4 of 12 O/OJCA/162/2014 CAV JUDGMENT permitted to withdraw the Special Leave Petition with liberty to seek review of the judgment under challenge. According to the applicant, the Supreme Court of India, while accepting such request, disposed of the Special Leave Petition as withdrawn with liberty in terms of prayer made by the learned Additional Solicitor General. The Supreme Court, however, made it clear that liberty given by the Supreme Court should not be construed as a mandate to the High Court to entertain and allow the review petition and, if any such petition was filed, the High Court should decide the same on its merit.
3.6 The applicants contend that certified copy of the order passed by the Supreme Court in respect of SLP (C) No. CC No.13647 of 2013 in the case of CCE vs. M/s. Vitrag Silk Mills Pvt. Ltd. was received by the office of the applicant on 20th September 2013 and thereafter, the applicant made a reference to the Director of Legal Affairs on 21st October 2013 and 13th September 2013 to ascertain the circumstances, events and happenings which compelled the Additional Solicitor General to withdraw the SLP seeking review of the judgment of this Court.
3.7 The Director of Legal Affairs, New Delhi gave reply to the said reference, which was received by the applicant on 3 rd December 2013. The applicant, after following the required procedure including that of obtaining approval of the Chief Commissioner, Central Excise and Customs, Vadodara, has decided to apply for review of order Page 5 of 12 O/OJCA/162/2014 CAV JUDGMENT dated 26th December 2012 passed in Tax Appeal No.525 of 2012 in the case of M/s. Vitrag Silk Mills Pvt. Ltd.
3.8 According to the applicant, Tax Appeal No.525 of 2012 is disposed of by a Division Bench of this Court by placing sole reliance on the CAV common judgment dated 28th September 2012 in Tax Appeal No.1153 of 2011 and connected appeals. The applicant obtained legal opinion from the Central Government Counsel on the feasibility of filing the present review applications before this Court and considering the opinion, it has decided to file the present Misc.
Civil Applications for review.
3.9 The applicants submit that consequently, the papers were forwarded and relevant formalities were taken and, ultimately, the present application for review have been filed on 10th January 2014 and prays for condonation of delay.
4. The applications are opposed by the respondent by filing affidavit in reply and in the reply, the respondent has asserted that the allegations contained in the applications for condonation of delay are not true or are half true. According to the respondent, the tax effect of the present appeals being admittedly less than Rs.25 lakh, in view of the instructions dated 17th August 2011 issued by the Department of Revenue, Central Board of Excise and Customs, the applicant was well aware that there was no scope of preferring any Page 6 of 12 O/OJCA/162/2014 CAV JUDGMENT Special Leave Application against the common judgment dated 28th September 2012 in respect of those appeals where the valuation was less than Rs.25 lakh. The respondent has relied upon the answer given by Rajiv Kumar Agarwal, Central Public Information Officer, Central Excise & Customs dated 24th July 2013 in reply to the information sought under RTI Act by one Shri Kaushik I Vyas, Advocate, wherein the authority has informed that in the matter of Tax Appeal No.1153 of 2011 and others in which this High Court vide CAV judgment dated 28th September 2012 has decided 29 Tax Appeals, the Department has taken decision to file SLP in only nine Tax Appeals wherein amount involved is Rs.25 lakh or more. By pointing out the above information, the respondent contends that, therefore, there was no justification of the statement made in the applications for condonation of delay that proposal for filing appeal even in respect of appeals where valuation is less than Rs.25 lakh was pending. The respondent, in substance, contends that the common judgment dated 28th September 2012 in respect of those Tax Appeals where valuation was less than Rs.25 lakh, under the existing law, could not be challenged in the Supreme Court and thus, if there was any decision taken to file application for review, they should have taken such decision within 30 days from the date of passing of such judgment and there was no justification of waiting till August 2013 when another Special Leave Application filed by the applicant against the order of a Division Bench of this court in an appeal where the subject matter of tax effect was more than Rs. 25 lakh by relying Page 7 of 12 O/OJCA/162/2014 CAV JUDGMENT upon the above judgment, was permitted to be withdrawn.
5. After hearing the learned counsel for the parties and after going through the aforesaid materials on record, we find substance in the contention of Mr Parikh, the learned Senior Advocate appearing on behalf of the respondent that in all these matters, as law has prohibited filing of Special Leave Application against the order sought to be reviewed at the instance of the Revenue because of the amount of tax effect fixed by law, the applicants were entitled to take into consideration from the very day of delivery of the order as to whether they would file any application for review. Thus, according to Mr Parikh, there was no justification of waiting for the fate of other appeals where valuation was more than Rs.25 lakh.
6. Although Mr Oza, the learned Senior Advocate appearing on behalf of the applicant tried to convince us that a coordinate Bench of this Court having already condoned the delay in preferring similar application for review and, after condoning delay, having adjourned the matter sine die till the disposal of the Special Leave Application, we should also follow the same procedure, we are not impressed by such submission. It appears that a coordinate Division Bench has adopted the aforesaid procedure in connection with a matter where the valuation was above Rs.25 lakh and in that case, the matter went to the Supreme Court and thereafter, it was withdrawn, whereas in the cases before us from the very beginning, in view of bar created by Page 8 of 12 O/OJCA/162/2014 CAV JUDGMENT statute, there was no scope of preferring any Special Leave Application before the Supreme Court and thus, knowing fully well that the period of limitation for filing application for review being 30 days, the Department should have taken immediate decision.
7. Thus, in the cases before us, the Union of India has failed to give any satisfactory answer as to what prevented them from filing the application for review within 30 days when there was no dispute that Special Leave Application could not be filed at the instance of the Revenue in this type of cases against our order dated 28th September 2012 where the revenue-effect involved was less than Rs.25 lakh.
8. As pointed out by the Supreme Court in the case of Ajit Singh Thakur Singh and another v. State of Gujarat reported in AIR 1981 SC 733, sufficient cause for the purpose of condonation of delay must be referable to period prior to expiry of limitation and any event or circumstance arising after the expiry of limitation cannot constitute such sufficient cause. The following observations in the above matter are quoted below:
"Now, it is true that a party is entitled to wait until the last day of limitation for filing an appeal. But when it allows limitation to expire and pleads sufficient cause for not filing the appeal earlier, the sufficient cause must establish that because of some event or circumstance arising before limitation expired it was not possible to Page 9 of 12 O/OJCA/162/2014 CAV JUDGMENT file the appeal within time. No event or circumstance arising after the expiry of limitation can constitute such sufficient cause. There may be events or circumstances subsequent to the expiry of limitation which may further delay the filing of the appeal. But that the limitation has been allowed to expire without the appeal being filed must be traced to a cause arising within the period of limitation. In the present case, there was no such cause, and the High Court erred in condoning the delay."
(Emphasis supplied by us).
9. We may, at this stage, also profitably refer to a recent decision of the Supreme Court in the case of Office of the Chief Post Master General and Ors. v. Living Media India Ltd. and Another reported in AIR 2012 SC 1506 where the Supreme Court made the following observations in the context of the delay of 427 days by a Government in preferring appeal before the Supreme Court:
"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 Page 10 of 12 O/OJCA/162/2014 CAV JUDGMENT 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."Page 11 of 12 O/OJCA/162/2014 CAV JUDGMENT
(Emphasis supplied).
10. On consideration of the entire materials on record and by applying the principles laid down by the Supreme Court in the above two decisions, we find that the applicants have failed to prove sufficient cause for not filing the applications for review within the period of limitation. There was also no justification at the instance of any reasonable person, none other than Union of India to wait till the permission for withdrawal of application for Special Leave was permitted by the Supreme Court with liberty to file application for review in a different matter inasmuch as on expiry of the period of limitation, a valuable right has accrued in favour of the respondent before us on the subject-matter of the present litigation.
11. These applications are thus devoid of any merit and are, consequently, dismissed.
12. In view of dismissal of these applications, all the connected applications for review are also dismissed as barred by limitation.
Sd/-
(BHASKAR BHATTACHARYA, CJ.) Sd/-
(J.B.PARDIWALA, J.) mathew Page 12 of 12