2008 (7) TMI 415 - HC - Central Excise

Condonation of delay of 280 DAYS - Appeal to High Court - Limitation - Held that - Considering the correspondence annexed to the affidavit dated 24-7-2008 and the inquiry undertaken before recording a decision not to challenge the order of Tribunal, there can be no doubt that the applicant had consciously abandoned the cause and no ground is made out to establish in what manner such a conscious decision is incorrect. Merely because the respondent assessee was pursuing the matter further, cannot be a ground to come to the conclusion that the order of the Tribunal was wrong on the basis of judgment on which reliance has been placed by Tribunal being inapplicable. In fact, nothing has been shown as to how the said judgment becomes inapplicable when originally the same order of Tribunal was found to be correct in law and justified on facts. Even the revenue implications were considered by the Commissioner while recording the decision when the particulars of duty and penalty were called for. In the aforesaid set of facts and circumstances of the case, in absence of any sufficient cause having been made out, the delay in preferring Tax Appeal cannot be condoned and the application is hereby rejected.

Summary

Issues Involved:
Condonation of delay in filing Tax Appeal due to Tribunal order interpretation.

Analysis:
The case involved an application seeking condonation of delay of 280 days in filing a Tax Appeal due to an order made by the Customs, Excise & Service Tax Appellate Tribunal. The applicant revenue received the order on 18-8-2005, and the appeal was required to be filed by 14-2-2006. The applicant claimed that the Tribunal's order did not mention full facts or discuss the main issue, leading to a decision not to file an appeal initially. The respondent assessee resisted the application, leading to additional affidavits being filed by both parties.

After hearing the parties, the Court found that no sufficient cause was shown for condoning the delay. The Commissioner had consciously decided on 22-8-2005 not to challenge the Tribunal's order, as evidenced by communications and inquiries made before the decision. The applicant's argument that the respondent assessee pursued the matter further and took credit based on the Tribunal's order was not deemed sufficient to establish a cause for the delay. The Court emphasized that once a cause is abandoned, there must be a strong change in circumstances to establish sufficient cause for condoning the delay. In this case, no such change was demonstrated, and the conscious decision not to challenge the Tribunal's order was upheld.

In conclusion, the Court rejected the application for condonation of delay in filing the Tax Appeal, stating that no sufficient cause was made out. The application was dismissed, and no costs were awarded. Additionally, the Tax Appeal [ST] No. 3526 of 2006 was dismissed in light of the order made in the application.