2021 (3) TMI 23 - AT - Central Excise

Condonation of delay of 367 days in filing the appeal - Appellant is a Government body whereas respondent is a Central Government in a matter of taxation - delay sufficiently explained - service of order in dispute - adjudication order passed even without hearing the appellant - HELD THAT - Hon ble Supreme Court has in case of THE STATE OF MADHYA PRADESH AND ORS. VERSUS BHERULAL 2020 (10) TMI 1231 - SUPREME COURT has held that i t 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 bonafide effort, there is no need to accept the usual explanation that the file was kept pending for several months/yea₹ 4 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 as stated by the Hon ble Apex Court is very succinct and clear that while examining the applications for condonation of delay, some leeway should be given to the government bodies and agencies, however this does not imply condoning the inordinate and unexplained delays. Further in all the cases decided by the Hon ble Apex Court, as above the appellant government is against the private persons, none of the case is one where the Appellant is one government body and the respondent is the Central Government in a matter of taxation. Undoubtedly, Appellant here seeking condonation of delay is Thane Municipal Corporation, a government body constituted under Article 243 of the Constitution and the respondent is Central Government. When both Appellant and Respondent are Government and government body the above said decisions do not decide the issue. It is also found that huge demand of ₹ 46,17,13,528/- (Service Tax) ₹ 46,17,13,528/- (Penalty) Interest has been made against the appellant even without receiving any reply or conducting an effective personal hearing in the matter. Appellant was nowhere aware of the completion of adjudication proceedings and the order passed against them. On the passing of the order as per the affidavit filed by the appellant, they for first time came to know about the order when the same was forwarded to them as attachment to email dated 14.01.2019, i.e. more than three from the date of order i.e. 17.08.2018 or 23.08.2018 shown as date of dispatch. So the appellants were definitely not in position to act on the order - By issuing the certified copy of impugned order on 25.11.2019, respondent department itself agrees that the impugned order in appealable form was in fact served on 25.11.2019. If that was not case and the department was of the view that the impugned order had been served on the appellants when it was issued on 23.08.2018, they should have proceeded to recover the sums due from the appellant after expiry of the period of appeal. On the contrary department chose to stay mum - thus, there is definitely delay in filing of the appeal but delay has been explained by the appellants in their affidavit. The delay is condoned - COD application allowed - decided in favor of appellant.

Summary

Issues Involved:
1. Application for condonation of delay in filing the appeal.
2. Examination of "sufficient cause" for the delay.
3. Judicial precedents on condonation of delay.
4. Specific circumstances and procedural delays in the case.

Issue-wise Detailed Analysis:

1. Application for Condonation of Delay in Filing the Appeal:
The appellant sought condonation of a 367-day delay in filing the appeal. The tribunal examined the detailed affidavit provided by the appellant, which explained the sequence of events from the receipt of the order via e-mail to the filing of the appeal.

2. Examination of "Sufficient Cause" for the Delay:
The tribunal considered the affidavit and the explanations provided by the appellant, which included:
- Receipt of the impugned order via e-mail, which is not the prescribed mode of service.
- Multiple visits to the GST offices to ascertain the procedure for filing an appeal.
- Assignment of the appellant's officials to election duty during the Lok Sabha elections.
- Delays in engaging a counsel and obtaining the certified copy of the impugned order.
The tribunal noted that the certified copy of the impugned order was received on 25.11.2019, and the appeal was filed on 17.01.2020, indicating that the appellant acted diligently after receiving the certified copy.

3. Judicial Precedents on Condonation of Delay:
The tribunal referred to several judicial precedents, including:
- State Of Haryana Vs Chandra Mani: The Supreme Court emphasized that "sufficient cause" should receive a liberal construction and that discretion under Section 5 of the Limitation Act should not be rigidly applied.
- Office of the Chief Post Master General: The Supreme Court held that government departments must provide reasonable and acceptable explanations for delays and should not rely on bureaucratic processes as an excuse.
- The State of Madhya Pradesh vs Bherulal: The Supreme Court reiterated that delays caused by bureaucratic inefficiencies should not be condoned without plausible explanations.

4. Specific Circumstances and Procedural Delays in the Case:
The tribunal observed that the appellant was unaware of the completion of adjudication proceedings and the order passed against them until they received the order via e-mail. The tribunal also noted the procedural delays due to election duties and the time taken to engage a counsel and obtain the certified copy of the order. The tribunal found that the appellant had provided a satisfactory explanation for the delay.

Conclusion:
The tribunal concluded that the delay in filing the appeal was explained adequately by the appellant. Considering the principles laid down by the Supreme Court and the specific circumstances of the case, the tribunal condoned the delay in filing the appeal. The order was pronounced in the open court.