Custom, Excise & Service Tax Tribunal
M/S. Jaipur Nagar Nigam vs C.C.E. Jaipur on 18 December, 2012
CUSTOMS EXCISE & SERVICE TAX APPLELLATE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
COURT NO. III
Service Tax Appeal No. 345 of 2012
Service Tax COD Application No. 141 of 2012
Service Tax Stay Application No. 752 of 2012
Date of Hearing : 18/12/2012
[Arising out of Order-in-Appeal No. 6(DK)ST/JPR-I/2009 dated 4.2.2009 passed by the Commissioner of Central Excise (Appeals), Jaipur ]
For approval and signature:
Hon'ble Ms. Archana Wadhwa, Member (Judicial)
Hon'ble Mr. Rakesh Kumar, Member (Technical)
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 CESTAT (Procedure) Rules, 1982 for
publication in any authoritative report or not?
3. Whether Their Lordships wish to see the fair : Seen
copy of the Order?
4. Whether Order is to be circulated to the : Yes
Departmental authorities?
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M/s. Jaipur Nagar Nigam.
Applicant
Vs
C.C.E. Jaipur
Respondent
Present for the Appellant : Shri Bipin Garg, Advocate
Present for the Respondent : Shri R.K. Mathur, AR
CORAM:
Hon'ble Ms. Archana Wadhwa, Member (Judicial)
Hon'ble Mr. Rakesh Kumar, Member (Technical)
ORAL ORDER NO . FO/ST/A/55024/13 ST/SO/55061/13
ST/MO/55060/13 Per Archana Wadhwa (for the Bench):
The delay in filing the present appeal is of 1043 days. Learned Advocate Shri Bipin Garg appearing for the appellant fairly concedes that impugned order in appeal was passed by Commissioner (Appeals) on 4.2.2009 and was received by the appellant on 9.2.2009. As such, the last date for filing the appeal was on or around 8.5.2009, whereas the appeal stand filed on 16.3.2012, i.e. with a delay of 2 years and 10 months approximately.
2. On going through the COD application, we find that as per the appellant, the appeal papers were handed over to their advocate Shri S. Mohnot & Company, Chartered Accountants, Jaipur, with the direction to file the appeal. According to the appellant, they were under the bonafide belief that the Counsel must have filed the appeal. It was subsequently that when the Revenue approached them for recovery of confirmed dues, they contacted their advocate, who informed them that the appeal has not been filed inasmuch as their concerned employee has left the job.
3. We note that the delay in filing the appeal is huge i.e. 1043 days. The issue to be decided is as to whether the explanation provided by the appellant in support of COD application can constitute sufficient reasonable cause for condoning the same. The said issue has been subject matter of various decisions of judicial as also quasi-judicial authorities and is required to be decided on the basis of facts available in each and every case.
4. Learned advocate has relied upon the Honble Supreme Court decision in the case of N. Balakrishnan vs. M. Krishnamurthy [2008 (228) ELT 162 (SC)] wherein the delay of 883 days was allowed by observing that requisite information was not provided by their advocate on passing of decree ex parte and conduct of appellant not indicating him to be irresponsible litigant. Court further observed that condonation of delay is a matter of discretion of Court and length of delay is not relevant and acceptability of explanation is the only criterion. Learned advocate also refer to the Calcutta High Court in the case of Reckitt Benckiser (I) Ltd. [2010 (249) ELT 512 (Cal)]. The delay of 479 days in filing the appeal was condoned by the Honble High Court on the ground that Taxation Manager of the Company left the service and Factory Manager was mislead by a photocopy of receipted Form No. EA 2 and gave a wrong idea to management that appeal had been filed. In view of the foregoing, he prays for condoning the delay.
5. On the other hand, learned DR relies upon the Tribunals decision in the case of Fertiliser Corpn. of India Ltd. vs. CCE Ranchi [2012 (282) ELT 463 (Tri-Kolkata)] wherein the delay of 170 days was not condoned by not accepting the explanation of the appellant which was a public sector undertaking. Similarly, our attention stand drawn to the Tribunals decision in the case of CC, Kolkata vs. Simplex Engineering Pvt. Ltd. [2012 (278) ELT 390 (Tri-Kolkata)] wherein the COD application was rejected on the ground that delay does not stand explained properly.
6. After considering the submissions made by both the sides, we find that the only reason forwarded by the appellants for condoning the delay is that his advocate was instructed to prepare and file the appeal papers. However, learned advocate has not produced any evidence to show so. In any case, we find that after the preparation of appeal by the advocate, the same is required to be signed by the authorized signatory of the appellant. A demand draft for the Court fee is required to be prepared and annexed with the appeal papers. Vakalatnama is also required to be signed by authorized signatory of the appellant. Merely handing over the papers to the advocate for preparation of appeal and thereafter sleeping for two years and 10 months without making any inquiries from the advocate as regards the filing of their appeal cannot be considered to be sufficient and reasonable cause. It does not stand contended by the appellant that after handing over the appeal papers, they made efforts to contact the advocate for receiving the appeal paper. It is also not their case that requisite demand draft was prepared by them well within time of three months provided under the law and handed over to the advocate. In case, we also find that date of handing over the appeal papers also does not stand specified in the COD application.
7. We are aware that length of delay is not important, as held by the various precedent decisions and it is the bonafide of the appellant and sufficiency of a satisfactory explanation which should be the criterion for deciding the COD application. We are also aware that words sufficient cause should be given a liberal construction so as to advance substantial justice. However, it has to be kept in mind that such liberal construction attacks the vested right of the other side and if the delay is on account of one of the deliberate inaction or negligence, the same cannot be considered as sufficient cause. While condoning such huge delay, it has to be kept in mind that the same does render the provision of limitation as redundant and inoperative. There is no straight proof jacket formula for condoning or not condoning such delay and every case has to be decided on the available circumstances.
8. By applying the above criterion to the facts of the present case, we find that the delay has occurred on account of diligence or inaction on the part of the assessee. Things are required to be done by the assessee in a particular manner and within the framework of time granted by the legislation, Courts expect the appellant to be diligent. The present assessee has not shown us any reasons in support of their defence, to accept their explanation inasmuch as they have not even contended that after handing over the papers to the advocates, they kept on inquiring from them about filing of appeal. Not only that as already observed, they have failed miserably to show that the appeals were signed by them and the other requisite documents like Demand drafts and the paper book was prepared and due assistance was given to the advocate for drawl of the appeal and for filing the same in the Tribunal. Certificate of the concerned advocate to whom papers were handed over is also not available on the record supporting the ground taken by the appellant. For all the above reasons, we are of the view that reasons putforth by the appellant are not bonafide and the delay could have been easily avoided by them by acting with normal care and caution. In view of the foregoing, we reject the COD application. Inasmuch as the delay has not been condoned, COD application, stay application as also appeal are also rejected being barred by limitation.
9. All applications and appeal are disposed of in the above manner.
(Pronounced in the open Court)
( Archana Wadhwa ) Member(Judicial)
( Rakesh Kumar ) Member(Technical)
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