Custom, Excise & Service Tax Tribunal
V M Placements Services Pvt Ltd vs Cgst & Ce Kanpur on 16 July, 2025
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
ALLAHABAD
REGIONAL BENCH - COURT No. II
Service Tax Appeal No.70954 of 2018
(Arising out of Order-in-Appeal No.189-190/ST/ALLD/2018 dated 26.03.2018
passed by Commissioner (Appeals) CGST & Central Excise, Allahabad)
M/s V. M. Placements Services Pvt. Ltd., .....Appellant
(129, Manohar Nagar Barra-2,
Barra, Kanpur Nagar-208027)
VERSUS
Commissioner of Central Excise &
CGST, Kanpur ....Respondent
(38, M.G. Marg, Civil Lines, Allahabad-211001)
WITH
Service Tax Appeal No.70955 of 2018
(Arising out of Order-in-Appeal No.189-190/ST/ALLD/2018 dated 26.03.2018
passed by Commissioner (Appeals) CGST & Central Excise, Allahabad)
Shri Vinod Kumar Mishra, Director .....Appellant
(129, Manohar Nagar Barra-2,
Barra, Kanpur Nagar-208027)
VERSUS
Commissioner of Central Excise &
CGST, Kanpur ....Respondent
(38, M.G. Marg, Civil Lines, Allahabad-211001)
APPEARANCE:
Request for adjournment, for the Appellant
Smt Chitra Srivastava, Authorized Representative for the Respondent
CORAM: HON'BLE MR. SANJIV SRIVASTAVA, MEMBER (TECHNICAL)
HON'BLE MR. ANGAD PRASAD, MEMBER (JUDICIAL)
FINAL ORDER NOs.-70487-70488/2025
DATE OF HEARING : 14.07.2025
DATE OF DECISION : 14.07.2025
ANGAD PRASAD:
The present appeal has been filed by the Appellants against
the Order-in-Appeal No.189-190/ST/ALLD/2018 dated
Service Tax Appeal Nos.70954-70955 of 2018
2
26.03.2018 passed by the learned Commissioner (Appeals)
CGST & Central Excise, Allahabad.
2.1 Brief facts of the Case are that acting on intelligence that
appellants were engaged in providing Manpower Recruitment of
Supply Agency Service taxable under the Finance Act, 1994,
without properly discharging their Service Tax liability. The
Officers of the Directorate General of Central Excise Intelligence,
Lucknow searched at the registered office at C-144, Awas Vikas
Colony, Etawah and the corporate branch office at LGF-95,
Khazana Complex, Ashiyana Kanpur Road, Lucknow, of the
appellant. Further, enquiry was conducted, by way of scrutiny of
the records/ documents and recording of the statements of Shri
Vinod Kumar Mishra, Director of the appellant, under Section 14
of the Central Excise Act, 1944, applicable to Service Tax under
Section 83 of Chapter V of the Act, revealed that the appellant
had not assessed their Service Tax Liability properly and had
short paid/ not paid Service Tax (including Edication, Cess and
Secondary & Higher Education Cess) of Rs.2,84,781/-, during
the period 2011-12 to 2014-15.
2.2 Show Cause Notice dated 18.10.2016 was issued to the
appellant for demanding Service Tax (including Cesses) of
Rs.2,84,781/- alongwith interest, for imposing penalties under
Sections 77(1)(d) & 78 of the 70 of the Act read with Rule 7C of
the Service Tax Rules, 1994, penal provisions under Section 78A
of the Act were also invoked against Shri Vinod Kumar Mishra,
Director of the appellant.
2.3 The said show cause notice was adjudicated vide Order-in-
Original dated 31.03.2017 and following order was passed:-
ORDER
(i) I confirm the demand of Service Tax of Rs.2,84,781/-
(Rupees Two lac eighty four thousand seven hundred eighty one only) and order for recovery from M/s V.M. Placement Services Private Ltd. 129-Manohar Nagar, Barrá-2, Barra, Kanpur under Section 73(2) alongwith interest due thereon under Section 75 of the Finance Act, 1994.
Service Tax Appeal Nos.70954-70955 of 2018 3
(ii) I impose a penalty of Rs.2,84,781/- (Rupees Two lac eighty four thousand seven hundred eighty one only) upon M/s V.M. Placement Services Private Ltd. 129- Manohar Nagar, Barra-2, Barra, Kanpur under Section 78 of the Finance Act, 1994 for suppression of facts and value of taxable service and contravention of the provisions of the Act and Rules with intent to evade payment of Service Tax.
(iii) I impose a penalty of Rs.1000/- (Rupees One thousand only) upon M/s V.M. Placement Services Private Ltd. 129- Manohar Nagar, Barra-2, Barra, Kanpur under Section 77(1)(d) of the Finance Act, 1994 for not depositing service tax in due time electronically as per Rule 6 of Service Tax Rules and Section 68 of the Finance Act, 1994.
(iv) I impose a late fee of Rs.1500/- (Rs.1000+500) (Rupees One thousand five hundred only) under Section 70 of the Finance Act, 1994 read with Rule 7C of the Service Tax Rules, 1994 for delayed furnishing of ST-3 returns.
(v) I impose a penalty of Rs.10000/- (Rupees Ten Thousand only) upon Shri Vinod Kumar Mishra Director of M/s V.M. Placement Services Private Ltd. 129-Manohar Nagar, Barra-2, Barra, Kanpur under section 78A of the Finance Act, 1994.
2.4 Being aggrieved the Appellants filed appeals before the first Appellate Authority. The learned Commissioner (Appeals) has passed the following order:-
"2.3 Aggrieved with the impugned order dated 31.03.2017, the appellant and Shri Vinod Kumar Mishra, Director of the Appellant, have filed the present two appeals, on 20.11.2017, contesting the confirmation of demand and the imposition of penalties. They have also filed applications for Condonation of delay, submitting that the delay in filing the appeal was due to misplacement of impugned order dated 31.03.2017 by the recipient of the impugned order, Shri Jay Prakash Shukla, an employee and authorized signatory of the Appellant & Shri Vinod Kumar Mishra, Director of the Appellant.
2.4 Since they did not mention in the applications of the condonation of delay as to when their authorized signatory had received the impugned Order, enquiry was conducted with the jurisdictional Assistant Commissioner, vide letter Service Tax Appeal Nos.70954-70955 of 2018 4 dated 01.02.2018, for ascertaining the mode and date of communication of the impugned order to the Appellant and Shri Vinod Kumar Mishra, Director of the appellant. The Assistant Commissioner, CGST Division-1, Kanpur, vide letter dated 14.03.2018, informed that the impugned Order was served upon Shri Jay Prakash Shukla the authorized signatory of the appellant, who was authorized by Shri Vinod Kumar Mishra, on 04.05.2017, by hand and also enclosed copy of the said dated acknowledgement.
3. Discussions and Findings: I have gone through the records of the case. I find that Section 37C(1)(a) of the Central Excise Act, 1944 as made applicable to the Service Tax matters vide Section 83 of the Act, provides that any decision or order passed or any summons or notices issued under this Act or the rules made thereunder, shall be served, by tendering the decision, order, summons or notice, or sending it by registered post -------to the person for whom it is intended or his authorized agent, if any.
3.1 Since in this case, the impugned Order was served upon the authorized signatory, on 04.05.2017, I, thus, find that the appellant and Shri Vinod Kumar Mishra, Director of the appellant, had received the impugned Order on 04.05.2017, whereas they have filed the appeals on 20.11.2017. 3.2 Further, I find that Section 85(3A) of the Act provides, as under: Section 85(3A): An appeal shall be presented within two months from the date of receipt of the decision or order of such adjudicating authority, made on and after the Finance Bill, 2012 receives the assent of the President, relating to service tax, interest or penalty under this Chapter: Provided that the Commissioner of Central Excise (Appeals) may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of two months, allow it to be presented within a further period of one month. 3.3 From the aforesaid statutory provisions, it is clear that any appeal is required to be filed within a period of two Service Tax Appeal Nos.70954-70955 of 2018 5 months from the date of receipt of the decision or order of the Adjudicating Authority and the Commissioner of Central Excise (Appeals) has power to condone the delay in filing the appeal for a further period of one month only. However, in this case, the period of two months expired on 04.07.2017, as the impugned Order was served upon the appellant and Shri Vinod Kumar Mishra, on 04.05.2017, and the further period of one month which the Commissioner (Appeals) can condone, expired on 04.08.2017, whereas the appeals have been filed on 20.11.2017.
3.3 It is, thus, observed that since the appeals have been filed much beyond the time limit specified in Section 85(3A) of the Act, the same being time barred, are liable for dismissal.
4. In view of the above, the appeals filed by the appellant and Shri Vinod Kumar Mishra, Director of the appellant, are rejected."
2.5 Being aggrieved appellants have filed present appeals before this Tribunal.
3.1 Learned Counsel for the appellant sent a letter for adjournment on the ground that due to illness, she is unable to appear before the Bench. In support of the illness application, she has not submitted any medical document. In have heard Smt Chitra Srivastava learned Authorised Representative appearing on behalf of the revenue.
3.2 Learned Authorised Representative submits that in the matter so many times granted and illness application without any supporting medical certificate is no ground for an adjournment. Appeal be heard and decided on merits of the case.
4.1 We have considered the impugned orders along with the submissions made in appeal and during the course of argument.
4.2 We observe that illness without a medical certificate cannot be a ground for adjournment. Therefore, after rejecting the prayer for adjournment, we proceed to decide the appeal after Service Tax Appeal Nos.70954-70955 of 2018 6 hearing the learned Authorised Representative appearing for revenue.
4.3 The appeal filed by the appellant was dismissed by the First Appellate Authority by observing as follows:-
"3. Discussions and Findings: I have gone through the records of the case. I find that Section 37C(1)(a) of the Central Excise Act, 1944 as made applicable to the Service Tax matters vide Section 83 of the Act, provides that any decision or order passed or any summons or notices issued under this Act or the rules made thereunder, shall be served, by tendering the decision, order, summons or notice, or sending it by registered post ----------- to the person for whom it is intended or his authorized agent, if any.
3.1 Since in this case, the impugned Order was served upon the authorized signatory, on 04.05.2017, 1, thus, find that the appellant and Shri Vinod Kumar Mishra, Director of the appellant, had received the impugned Order on 04.05.2017, whereas they have filed the appeals on 20.11.2017.
3.2 Further, I find that Section 85(3A) of the Act provides, as under:
Section 85 (3A): An appeal shall be presented within two months from the date of receipt of the decision or order of such adjudicating authority, made on and after the Finance Bill, 2012 receives the assent of the President, relating to service tax, interest or penalty under this Chapter:
Provided that the Commissioner of Central Excise (Appeals) may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of two months, allow it to be presented within a further period of one month.
Service Tax Appeal Nos.70954-70955 of 2018 7 3.3 From the aforesaid statutory provisions, it is clear that any appeal is required to be filed within a period of two months from the date of receipt of the decision or order of the Adjudicating Authority and the Commissioner of Central Excise (Appeals) has power to condone the delay in filing the appeal for a further period of one month only. However, in this case, the period of two months expired on 04.07.2017, as the impugned Order was served upon the appellant and Shri Vinod Kumar Mishra, on 04.05.2017, and the further period of one month which the Commissioner (Appeals) can condone, expired on 04.08.2017, whereas the appeals have been placed on 20.11.2017.
3.3 It is, thus, observed that since the appeals have been filed much beyond the time limit specified in Section 85(3A) of the Act, the same being time barred, are liable for dismissal."
4.4 The above approach of the First Appellate Authority cannot be faulted with in view of the decision of Honb'le Supreme Court in the case of M/s Singh Enterprises [2008 (221) E.L.T. 163 (SC)], wherein it has been held that Commissioner (Appeals) could not condone the delay beyond the 30 days in filing the appeal before him, relevant part of the said decision are reproduced bellow for ready reference:-
"6. At this juncture, it is relevant to take note of Section 35 of the Act which reads as follows :
"35. Appeals to Commissioner (Appeals). - (1) Any person aggrieved by any decision or order passed under this Act by a Central Excise Officer, lower in rank than a Commissioner of Central Excise, may appeal to the Commissioner of Central Excise (Appeals) [hereafter in this Chapter referred to as the Commissioner (Appeals)] within sixty days from the date of the communication to him of such decision or order :
Service Tax Appeal Nos.70954-70955 of 2018 8 Provided that the Commissioner (Appeals) may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of sixty days, allow it to be presented within a further period of thirty days.
(2) Every appeal under this section shall be in the prescribed form and shall be verified in the prescribed manner."
7. It is to be noted that the periods "sixty days" and "thirty days" have been substituted for "within three months" and "three months" by Act 14 of 2001, with effect from 11-5-2001.
8. The Commissioner of Central Excise (Appeals) as also the Tribunal being creatures of Statute are vested with jurisdiction to condone the delay beyond the permissible period provided under the Statute. The period upto which the prayer for condonation can be accepted is statutorily provided. It was submitted that the logic of Section 5 of the Indian Limitation Act, 1963 (in short the „Limitation Act‟) can be 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 sub-section (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 upto 30 days after the expiry of 60 days which is the normal period for preferring appeal. Therefore, there is complete exclusion Service Tax Appeal Nos.70954-70955 of 2018 9 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.
9. Learned counsel for the appellant has emphasized on certain decisions, more particularly, I.T.C.‟s case (supra) to contend that the High Court and this Court in appropriate cases condoned the delay on sufficient cause being shown.
10. Sufficient cause is an expression which is found in various statutes. It essentially means as adequate or enough. There cannot be any straitjacket formula for accepting or rejecting the explanation furnished for delay caused in taking steps. In the instant case, the explanation offered for the abnormal delay of nearly 20 months is that the appellant concern was practically closed after 1998 and it was only opened for some short period. From the application for condonation of delay, it appears that the appellant has categorically accepted that on receipt of order the same was immediately handed over to the consultant for filing an appeal. If that is so, the plea that because of lack of experience in business there was delay does not stand to be reason. I.T.C.‟s case (supra) was rendered taking note of the peculiar background facts of the case. In that case there was no law declared by this Court that even though the Statute prescribed a particular period of limitation, this Court can direct condonation. That would render a specific provision providing for limitation rather otiose. In any event, the causes shown for condonation have no acceptable value. In that view of the matter, the appeal deserves to be dismissed which we direct. There will be no order as to costs."
4.5 Appellant have stated in the appeal filed before us that they had received the copy of the Original Authority on 25.09.2017 and have filed the appeal on 30.11.2017. Thus, the appeal filed before the First Appellate Authority was well within the period of limitation and could not have been dismissed for the reasons stated in appeal. It has been stated that in terms of Section 37C, the Jay Prakash Shukla the employee who received the order was not the authorized person and nothing has been Service Tax Appeal Nos.70954-70955 of 2018 10 placed on record to show that he received the copy of Order-in- Original under authorization from the appellant. The said fact is contrary to the findings recorded in para 2.4 of the impugned order. Para 2.4 is reproduced bellow:-
"2.4 Since they did not mention in the applications of the condonation of delay as to when their authorized signatory had received the impugned Order, enquiry was conducted with the jurisdictional Assistant Commissioner, vide letter dated 01.02.2018, for ascertaining the mode and date of communication of the impugned Order to the appellant and Shri Vinod Kumar Mishra, Director of the appellant. The Assistant Commissioner, COST Division-1, Kanpur, vide letter dated 14.03.2018, informed that the impugned Order was served upon Shri Jay Prakash Shukla the authorized signatory of the appellant, who was authorized by Shri Vinod Kumar Mishra, on 04.05.2017, by hand and also enclosed copy of the said dated acknowledgement."
4.6 From the above, it is evident that Shri Jay Prakash Shukla was the authorized signatory of the appellant who was authorized by Shri Vinod Kumar Mishra on 04.05.2017 to get the said order by hand and copy of the said dated acknowledgement was seen by the First Appellate Authority. The said authorization letter dated 04.05.2017 is reproduced as under for ready reference:-
Service Tax Appeal Nos.70954-70955 of 2018 11 4.7 In terms of the above letter dated 04.05.2017, the Order-
in-Original was served upon the authorized representative of the appellant and the copy of acknowledgement of the receipt of same is reproduced below:
Service Tax Appeal Nos.70954-70955 of 2018 12 4.8 From the above, it is evident that the order was served upon the appellant in the manner provided under Section 37C of the Act. If the order was served in that manner as provided under Section 37C on 04.05.2017 then there cannot be any question with regards to service of the order on that date, the evidence to that effect is available in the impugned order itself, which is not disputed.
4.9 From the records, it is evident that appellant had received the copy of order on 04.05.2017 and no evidence has been placed on record with regards to the service of the order on 25.09.2017. It is only by manipulation of document- specifically the last page of Order-in-Original that appellant have claimed Service Tax Appeal Nos.70954-70955 of 2018 13 that they have receive the copy of Order-in-Original on 25.09.2017. On going through the copy of the Order-in-Original filed along with the appeal before us, I find that the order enclosed with the appeal is neither certified copy of the order nor there is any signature of the any authority who has adjudicated in the matter. Scanned copy of the order provided by the appellant with the appeal is reproduced below:-
Service Tax Appeal Nos.70954-70955 of 2018 14 Service Tax Appeal Nos.70954-70955 of 2018 15 Service Tax Appeal Nos.70954-70955 of 2018 16 Service Tax Appeal Nos.70954-70955 of 2018 17 Service Tax Appeal Nos.70954-70955 of 2018 18 Service Tax Appeal Nos.70954-70955 of 2018 19 Service Tax Appeal Nos.70954-70955 of 2018 20 Service Tax Appeal Nos.70954-70955 of 2018 21 Service Tax Appeal Nos.70954-70955 of 2018 22 4.10 On perusal of last page of the order, it is evident that this order does not show any signature of the Adjudicating Authority nor there is any other detail which is relevant, is found. The only fact which is made visible on this copy of the order is that Shri Ram Shanker Tripathi has received the order on 25.09.2017, it is Service Tax Appeal Nos.70954-70955 of 2018 23 also not understand that as to how the signature of the person receiving the copy of order, put the signature with remark as 'received' on the copy received, it would only on the office copy maintaining with the authority giving the copy. Further, why would any person duly authorized receive an unsigned copy of order without getting the same certified. Appellant have not produced any letter by which he asked for the service of this order on him through Shri Ram Shanker Tripathi his authorized representative.
4.11 All these facts clearly shows that the appellant is trying to hide many more things, then what is stated in the case of the appellant do not merit any consideration, even in terms of law of equity and good conscious the basic principle of application of such law when person is claiming equity he should come with clean hand, which is not show in the present case. For this reason also, I do not find any merit in the appeal filed by the appellant. Nothing is available on record by which it can be claimed that Shri Ram Shanker Tripathi also was the authorized person to receive this copy or this copy was actually received by the appellant from the office of the any revenue authorities, certain marks indicate that this is only last page, which has been photocopies by hiding certain signatures and information which was available on the last page to prove the service of the order and instead of that information signature of Shri Ram Shankar Tripathi has been put, a signed copy of the order cannot become unsigned in the photocopy and if the order even signed then it accepted as an order in law and cannot have been implemented in that case appellant need not have file any appeal before First Appellate Authority or before us. The facts/grounds stated in para 6 & 7 of appeal is reproduced bellow are not worth any consideration:-
"6.That Shri Jay Prakash Shukla an employee in appellant's company had himself earlier gone to the Revenue office and there only he had received the copy of the aforesaid O-I-O No. 103/ST/AC/17 dated 31-03-2017. However shortly thereafter he met an accident, on account of which Service Tax Appeal Nos.70954-70955 of 2018 24 he did not come to work for quite some time. After recovering from his injuries, when he recalled about the copy of said Order-in-Original, he informed about the same to the appellant for the first time. Shri Jay Prakash Shukla searched for the aforesaid copy at his house and elsewhere but could not get the same. Thus as the copy of the impugned order could not actually reach the appellant, they wrote letters, one after another, asking for copy of the same as their aforesaid employee had forgotten where he had kept the copy of the same. However despite appellant's repeated request vide several letters, they were not being provided with the copy of the same. Finally the appellant went to the Revenue Office and got received in hand, the unsigned copy of aforesaid Order-in-Original No. 103/ST/AC/17 dated 31-03-2017 on 25.09.2017.
7. That the appellant being aggrieved by the O-I-O dated 31-03- 2017 and defacto received on 25-09-2017 preferred an appeal on 20.11.2017, i.e. within two months of the actual date of receipt of the said order, before the Commissioner (Appeals), Customs, Central Excise and Service Tax. The Commissioner (Appeals), Allahabad vide his Order-in-Appeal No. 189- 190/ST/ALLD/dated 26-03-
2018, dispatched on 13.04.2018, dismissed the appeal on the ground of delay without appreciating the facts and circumstances of the case and also without giving an opportunity of hearing to the appellant."
4.11 A copy of the last page of the order received from the concern jurisdictional authorities is reproduced bellow:-
Service Tax Appeal Nos.70954-70955 of 2018 25 Service Tax Appeal Nos.70954-70955 of 2018 26 4.12 The observations made by the Hon'ble Apex Court on the law of limitation in the case of Pathapati Subba Reddy [[2024] 4 S.C.R. 241] are relevant to the facts of this case and are reproduced below:
17. It must always be borne in mind that while construing „sufficient cause‟ in deciding application under Section 5 of the Act, that on the expiry of the period of limitation prescribed for filing an appeal, substantive right in favour of a decree-holder accrues and this right ought not to be lightly disturbed. The decree-holder treats the decree to be binding with the lapse of time and may proceed on such assumption creating new rights.
18. This Court as far back in 1962 in the case of Ramlal, Motilal And Chhotelal vs. Rewa Coalfields Ltd [A.I.R. 1962 SC 361] has emphasized that even after sufficient cause has been shown by a party for not filing an appeal within time, the said party is not entitled to the condonation of delay as excusing the delay is the discretionary jurisdiction vested with the court. The court, despite establishment of a „sufficient cause‟ for various reasons, may refuse to condone the delay depending upon the bona fides of the party.
19. In Maqbul Ahmad and Ors. vs. Onkar Pratap Narain Singh and Ors.[ A.I.R. 1935 PC 85], it had been held that the court cannot grant an exemption from limitation on equitable consideration or on the ground of hardship. The court has time and again repeated that when mandatory provision is not complied with and delay is not properly, satisfactorily and convincingly explained, it ought not to condone the delay on sympathetic grounds alone.
20. In this connection, a reference may be made to Brijesh Kumar and Ors. vs. State of Haryana and Ors.[2014 (4) SCALE 50] wherein while observing, as above, this Court further laid down that if some person has obtained a relief approaching the court just or immediately when the cause Service Tax Appeal Nos.70954-70955 of 2018 27 of action had arisen, other persons cannot take the benefit of the same by approaching the court at a belated stage simply on the ground of parity, equity, sympathy and compassion.
21. In Lanka Venkateswarlu vs. State of Andhra Pradesh & Ors.[(2011) 4 SCC 363], where the High Court, despite unsatisfactory explanation for the delay of 3703 days, had allowed the applications for condonation of delay, this Court held that the High Court failed to exercise its discretion in a reasonable and objective manner. High Court should have exercised the discretion in a systematic and an informed manner. The liberal approach in considering sufficiency of cause for delay should not be allowed to override substantial law of limitation. The Court observed that the concepts such as „liberal approach‟, „justice-oriented approach‟ and „substantial justice‟ cannot be employed to jettison the substantial law of limitation.
22. It has also been settled vide State of Jharkhand & Ors. vs. Ashok Kumar Chokhani & Ors.[ AIR 2009 SC 1927 14] , that the merits of the case cannot be considered while dealing with the application for condonation of delay in filing the appeal.
23. In Basawaraj and Anr. vs. Special Land Acquisition Officer [(2013) 14 SCC 81], this Court held that the discretion to condone the delay has to be exercised judiciously based upon the facts and circumstances of each case. The expression „sufficient cause‟ as occurring in Section 5 of the Limitation Act cannot be liberally interpreted if negligence, inaction or lack of bona fide is writ large. It was also observed that even though limitation may harshly affect rights of the parties but it has to be applied with all its rigour as prescribed under the statute as the courts have no choice but to apply the law as it stands and they have no power to condone the delay on equitable grounds.
Service Tax Appeal Nos.70954-70955 of 2018 28
24. It would be beneficial to quote paragraph 12 of the aforesaid decision which clinches the issue of the manner in which equilibrium has to be maintained between adopting liberal approach and in implementing the statute as it stands. Paragraph 12 reads as under:
"12. It is a settled legal proposition that law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes. The Court has no power to extend the period of limitation on equitable grounds. "A result flowing from a statutory provision is never an evil. A Court has no power to ignore that provision to relieve what it considers a distress resulting from its operation." The statutory provision may cause hardship or inconvenience to a particular party but the court has no choice but to enforce it giving full effect to the same. The legal maxim dura lex sed lex which means "the law is hard but it is the law", stands attracted in such a situation. It has consistently been held that, "inconvenience is not" a decisive factor to be considered while interpreting a statute."
25. This Court in the same breath in the same very decision vide paragraph 15 went on to observe as under:
"15. The law on the issue can be summarised to the effect that where a case has been presented in the court beyond limitation, the applicant has to explain the court as to what was the "sufficient cause" which means an adequate and enough reason which prevented him to approach the court within limitation. In case a party is found to be negligent, or for want of bona fide on his part in the facts and circumstances of the case, or found to have not acted diligently or remained inactive, there cannot be a justified ground to condone the delay. No court could be justified in condoning such an inordinate delay by imposing any condition whatsoever. The application is to be decided only within the parameters Service Tax Appeal Nos.70954-70955 of 2018 29 laid down by this Court in regard to the condonation of delay. In case there was no sufficient cause to prevent a litigant to approach the court on time condoning the delay without any justification, putting any condition whatsoever, amounts to passing an order in violation of the statutory provisions and it tantamounts to showing utter disregard to the legislature." (emphasis supplied)
26. On a harmonious consideration of the provisions of the law, as aforesaid, and the law laid down by this Court, it is evident that:
(i) Law of limitation is based upon public policy that there should be an end to litigation by forfeiting the right to remedy rather than the right itself;
(ii) A right or the remedy that has not been exercised or availed of for a long time must come to an end or cease to exist after a fixed period of time;
(iii) The provisions of the Limitation Act have to be construed differently, such as Section 3 has to be construed in a strict sense whereas Section 5 has to be construed liberally;
(iv) In order to advance substantial justice, though liberal approach, justice-oriented approach or cause of substantial justice may be kept in mind but the same cannot be used to defeat the substantial law of limitation contained in Section 3 of the Limitation Act;
(v) Courts are empowered to exercise discretion to condone the delay if sufficient cause had been explained, but that exercise of power is discretionary in nature and may not be exercised even if sufficient cause is established for various factors such as, where there is inordinate delay, negligence and want of due diligence;
(vi) Merely some persons obtained relief in similar matter, it does not mean that others are also entitled to the same benefit if the court is not satisfied with the cause shown for the delay in filing the appeal;
(vii) Merits of the case are not required to be considered in condoning the delay; and Service Tax Appeal Nos.70954-70955 of 2018 30
(viii) Delay condonation application has to be decided on the parameters laid down for condoning the delay and condoning the delay for the reason that the conditions have been imposed, tantamounts to disregarding the statutory provision.
4.13 In our considered view, impugned order needs to be upheld.
5.1 Appeals are dismissed.
(Dictated and pronounced in open court) (SANJIV SRIVASTAVA) MEMBER (TECHNICAL) (ANGAD PRASAD) MEMBER (JUDICIAL) akp