2019 (6) TMI 1351 - HC - Service Tax

Condonation of delay of 387 days in filing appeal - sufficient cause - HELD THAT - It is imperative to note that the order in original was passed on 12th January 2012. There was a delay in challenging the order in original before the Commissioner (Appeals) and, thus, the said appeal came to be dismissed as having been filed beyond the stipulated period of limitation, on 30th November 2016. The delay of 387 days in assailing the said order before the Tribunal, evidently, occurred at the second stage. It is true that the Court is expected to lean in favour of condonation of delay so that the lis is determined on merits. The Courts and Tribunal generally adopt a liberal approach and the expression, 'sufficient cause' is construed rather generously so as to advance substantial justice. However, the cause ascribed by a litigant must relate to the events which transpired in proximity to the passing of the order sought to be assailed. In the case at hand, the principal reason assigned for not filing the appeal is the death of one of the Partners of the petitioner No.1 firm. The said event occurred in the year 2010. The death of the partner of the petitioner No.1 occurred even before passing of the order in original. Since the order sought to be impugned before the Tribunal, was passed on 30th November 2016, the Tribunal was justified in refusing to condone the delay on account of a cause which had no causal connection with the period in question. If the said cause is discounted, then it seems to be a case of no specific and bonafide explanation relatable to the period of delay - The material on record, on the contrary, indicates that the petitioners have not been diligent in pursuing the remedies as the delay occurred in preferring the appeal against the order in original before the Commissioner (Appeals) and also in assailing the order passed by the Commissioner (Appeals) before the Tribunal. The impugned order cannot be said to be either perverse or unreasonable so as to warrant interference by this Court in exercise of extraordinary jurisdiction under Article 226 and 227 of the Constitution of India - petition dismissed.

Summary

Issues:
Challenge to the order of Customs Excise and Service Tax Appellate Tribunal regarding condonation of delay in filing appeal against an order dated 30th November 2016.

Analysis:
The petition under Article 226 and 227 of the Constitution of India challenges the order of the Customs Excise and Service Tax Appellate Tribunal (Tribunal) dismissing the petitioners' appeal due to a delay of 387 days in filing against an order dated 30th November 2016. The background facts reveal that a show-cause notice in 2009 led to an order in original in 2012, with subsequent dismissal of an appeal in 2016. The petitioners sought to appeal this decision, citing the death of a partner in 2010 as a reason for the delay. The Tribunal rejected the application for condonation of delay, prompting this petition.

The learned counsel for the petitioners argued that the Tribunal erred in rejecting the application, depriving the petitioners of a chance for adjudication on merits. The Court noted the reasons for delay, including the death of a partner, leading to dissolution of the firm. However, the Tribunal found this reason insufficient, given the time elapsed since the partner's death and the age of the deponent. The Court emphasized the need for a justifiable cause for delay, especially in proximity to the order being challenged.

Upon examining the material on record, the Court observed that the delay in challenging the original order occurred at the second stage, with the death of the partner predating the order in question. The Court highlighted the importance of a cause related to the events around the order being contested. In this case, the death of the partner in 2010 did not establish a causal link to the delay in filing the appeal. The Court concluded that the delay was not adequately explained and indicated a lack of diligence in pursuing remedies at both the Commissioner (Appeals) and Tribunal levels.

Ultimately, the Court held that the Tribunal's decision was not unreasonable or perverse, thus rejecting the petition. The Court emphasized the need for a specific and bona fide explanation for delays in legal proceedings, especially when seeking condonation of delay. The judgment underscores the importance of timely and diligent pursuit of legal remedies to advance substantial justice.