Custom, Excise & Service Tax Tribunal
M/S. Vinayagar Promoters & Builders vs C.S.T.-Service Tax-Visakhapatnam-I on 18 September, 2013
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH BANGALORE Application(s) Involved: ST/COD/27568/2013 in ST/27278/2013-DB ST/Stay/27569/2013 in ST/27278/2013-DB Appeal(s) Involved: ST/27278/2013-DB [Arising out of Order in Appeal No.05/2012 (V-I) ST dt. 16/02/2012 passed by Commissioner of Central Excise (Appeals), VISAKHAPATNAM ] M/s. Vinayagar Promoters & Builders Appellant Versus C.S.T.-Service Tax-Visakhapatnam-I Respondent
Appearance:
Mr.G.P. Sastry, Advocate For the Appellant Ms. Sabrina Cano, Superintendent (AR) For the Respondent CORAM:
HON'BLE SHRI D.N.PANDA , JUDICIAL MEMBER HON'BLE SHRI B.S.V.MURTHY , TECHNICAL MEMBER Date of Hearing: 18/09/2013 Date of Decision: 18/09/2013 Final Order No. 26595 / 2013 Order Per : D.N.PANDA Learned counsel submits that an employee K. Rambabu who was working with the appellant was engaged in the treatment of his wife due to accident met by her on 9.9.2011 and that accident ultimately resulted with amputation of right leg on that day. The employee was not able to concentrate on the regular work for which the appellant was prevented to file the appeal before Tribunal duly and 414 days of delay occurred. It was also submitted that dismissal of the appeal without condonation of delay would cause prejudice to the appellant. But no substantial reason has been stated in the application for condonation of delay. Only on the above ground, the appellant draws misplaced sympathy of the court for condoning the delay of 414 days.
2. Revenue submits that the length of delay being 414 days without any reasonable cause shown in the application, following dilatory tactics, appellant has caused prejudice to Revenue to realize its legitimate dues.
3. Heard both sides and perused the records including the affidavit and further reference made to bank draft purchased by appellant duly and renewing the same to pay the appeal fees.
4. Appeal memorandum discloses that the order appealed was received by the appellant on 7.3.2012. Limitation expired on 6.6.2012. The affidavit filed today shows that accident of wife of an employee occurred on 9.9.2011 which was much before receipt of the impugned order and limitation began. That affidavit does not disclose how the employee was connected with this appeal and in what manner and what was his role, so that appellant was prevented to file the appeal duly. The affidavit also does not disclose whether the said employee has prevented the appellant to file the appeal duly by any means.
5. None of the owners of the appellant have come out with clean hands to state the facts fairly before the Tribunal. While the original application filed before the Tribunal on 23.7.2013 for condonation of delay does not speak of any accident, the affidavit dated 27.8.2013 discloses the accident plea as above. It appears that the appellant painting a gloomy picture is drawing misplaced sympathy while causing prejudice to the Revenue when huge amount of service tax of Rs.45,14,181/- followed equal amount of penalty and interest has been imposed in adjudication and due for recovery. The appellant had paid Rs.27,64,847/- only against above demand while the demand runs into more than a crore of rupee.
6. Following dilatory tactics, in terms of belated appeal filed on 23.7.2013 with stay application, appellant has handicapped Revenue to realize its dues raised by impugned order dated 16.2.2012. Appellants approach as above has made the recovery proceedings to come to a halt and that also appears to be abusing process of law by the fiction raised as aforesaid today without being borne by the original application for condonation of delay filed at the time of filing of appeal. Without any good reason being explained against delay of 414 days, the appellant deserves to be unsuccessful in its effort, following the ratio laid down by apex court in the case of Ketian V. Parekh vs. Sp. Director of Enforcement: 2012 (275) E.L.T. 3 (S.C.) and its application fails.
7. Right of appeal to redress a wrong is a valuable right. But such a right is to be exercised within the statutory period. Time being essential, prescription of time limit for exercise of right to remedy is the necessity of civil society to put an end to the litigation without the same being perpetuated without time limit. For no adherence to law of limitation, Right diminishes with the passage of time and remedy is thus barred thereafter. Unless a party exercising right of appeal is vigilant to limitation prescribed by law, it has no right to ask the other side to suffer for the indolence of the former.
8. Limitation has also prescribed life span to legal so as to save time of judicial forums without the precious time of courts wasted trying a time-barred remedy lost by afflux of time. Such remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy which is enshrined in the maxim interest reipublicue up sit finis litium (It is for general welfare that a period be put to litigation). Accordingly, unreasonable and unexplained delay makes the remedy liable to be fatal.
9. Merely averring accident of spouse of an employee, appellant is not absolved of its obligation to adhere to the limitation prescribed by law. When the fact situation does not demonstrate now the appellant was prevented by the cause of spouse of an employee to seek appeal remedy. Appellants have not explained anything on this court. Laxity does not add to longevity to a remedy which exhausts with the callous and abuse of process of law following doctrine of resjudicata. Casual approach of appellant shows its scanty regard to law. Had there been bona fide, the appellant would have pursued its right duly. But that has not come to record. No vigilant attitude of appellant is visible from record. Length of deliberate delay has crippled appellant to be successful applicant without a bona fide cause today. Painting a gloomy picture, the appellant restrained Revenue to recovery process. It preferred to postpone its remedial measure without being vigilant and unmindful of the consequence of delay. Neither before limitation nor after that, it was conscious of its right of appeal. An indolent without being vigilant, losses its right. A man of prudence and diligence does not prefer to prejudice his interest seeking remedy of appeal belatedly.
10. On the facts and circumstances of the case, appeal is barred by limitation since a vigilant only deserves leniency while an indolent fails to deserve so. Just because the Tribunal believes that ordinarily a litigant does not stand to benefit filing an appeal late and refusal to condone delay may make the appellant remediless, an indolent has no right to abuse the process of law following the ratio laid down by apex court in the case of Collector vs. Land Acquisition, Anantnag and other vs. Mst. Katiji and Others - 1987 (28) ELT 185 (SC). No one has preemptory right of condonation of delay on flimsy plea. We are conscious that there cannot be presumption of deliberate delay on account of culpable negligence or mala fide. But reasons of delay explained must be acceptable to law.
11. The appellant has pleaded that it has taken the demand draft to pay the appeal fees and later on when the date expired, renewed from time to time. Even the last renewal made was in February 2013. Still the appellant took 5 month time to come to Tribunal for filing the appeal. This clearly shows that the appellant chose to prevent Revenue from recovery of the demand. We are conscious that the length of delay is immaterial when cause of delay advances justice. We are guided by the apex court decision in the case of N. Balakrishnan vs. M. Krishnamurthy: 2008 (228) E.L.T. 162 (S.C.) and hold that there was no reasonable cause to condone the delay of 414 days.
12. We are conscious that if the appeal is thrown at the threshold, the appellant shall suffer. But the appellant having caused prejudice to other side, law of limitation shall not grant him any immunity today. We are also conscious that no one shall prefer to cause prejudice himself following the decision of the apex court in Collector Vs. Land Acquisition, Anantnag and other vs. Mst. Katiji and Others : 1987 (28) ELT 185 (SC). But this is not the case where the appellant has acted bona fide. Therefore the stay application for condonation of delay does not deserve any consideration for which that is dismissed. When the miscellaneous application is dismissed, both stay and appeal stands dismissed.
(Order dictated and pronounced in open court) B.S.V.MURTHY TECHNICAL MEMBER D.N.PANDA JUDICIAL MEMBER rv 6