9911796707
TMI Blog2012 (10) TMI 819X X X X Extracts X X X X X X X X Extracts X X X X ..... of delay of 405 days in preferring the appeals against order passed by the Commissioner of Central Excise (Appeals) upholding rejection of the assessees refund claims. 2. The Assistant Commissioner had rejected the claims for refund filed by the assessee under Rule 5 of Cenvat Credit Rules, 2004 on the ground that input services on which the appellants had availed Cenvat credit, were not eligible input services, relying upon the order passed by the Additional Commissioner of Central Excise, Gurgaon wherein Cenvat credit on service tax paid on several input services received by the applicants, an EOU unit was denied on the ground that services received by the unit were not eligible input services. However, the order of the Additional Commissioner was set aside by the lower Appellate Authority and in the light of his order, the assessee became eligible to refund of unutilized credit of input service. In the present impugned order, the Commissioner (Appeals) has dismissed the appeals filed by the assessee on the ground that the earlier order of the Assistant Commissioner wherein refund applications of the appellants were rejected, was not challenged by them, which is factually inc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o be challenged before the higher forum within the statutory period of limitation. The fact that the order of the Additional Commissioner upholding that services received by the assessee were not eligible input services, was set aside by the Commissioner (Appeals), is no ground for the assessee not to file appeals before the Tribunal against the rejection of the refund claims. The Hon ble High Court has also not condoned the delay in filing appeals before the Tribunal against the ten orders challenged in the present appeals. We note that in the case of Balwant Singh v. Jagdish Singh reported in 2010 (262) E.L.T. 50 (S.C.), the Apex Court has held that delay is just one of the ingredients which has to be considered by the Court and in addition to this, the Court also take into account conduct of the parties, bona fide reasons for condonation of delay and whether delay is easily avoidable by the applicant acting with normal care and caution. The relevant paragraphs of the Apex Court judgment are reproduced below :- 14. In the case of Union of India v. Tata Yodogawa Ltd., [1988 (38) Excise Law Times 739 (S.C.)], this Court while granting some latitude to the Government in relation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would amount to practically rendering all these provisions redundant and inoperative. Such approach or interpretation would hardly be permissible in law. Liberal construction of the expression sufficient cause is intended to advance substantial justice which itself presupposes no negligence or inaction on the part of the applicant, to whom want of bona fide is imputable. There can be instances where the Court should condone the delay; equally there would be cases where the Court must exercise its discretion against the applicant for want of any of these ingredients or where it does not reflect sufficient cause as understood in law. [Advanced Law Lexicon, P. Ramanatha Aiyar, 2nd Edition, 1997]. The expression sufficient cause implies the presence of legal and adequate reasons. The word sufficient means adequate enough, as much as may be necessary to answer the purpose intended. It embraces no more than that which provides a plentitude which, when done, suffices to accomplish the purpose intended in the light of existing circumstances and when viewed from the reasonable standard of practical and cautious men. The sufficient cause should be such as it would persuade the Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aside abatement and decide the matter on merits, rather than terminate the appeal on the ground of abatement. (iii) The decisive factor in condonation of delay, is not the length, of delay, but sufficiency of a satisfactory explanation. (iv) The extent or degree of leniency to be shown by a court depends on the nature of application and facts and circumstances of the case. For example, courts view delays in making applications in a pending appeal more leniently than delays in the institution of an appeal. The courts view applications relating to lawyer s lapses more leniently than applications relating to litigant s lapses. The classic example is the difference in approach of courts to applications for condonation of delay in filing an appeal and applications for condonation of delay in re-filing the appeal after rectification of defects. (v) Want of diligence or inaction can be attributed to an appellant only, when something required to be done by him, is not done. When nothing is required to be done, courts do not expect the appellant to be diligent. Where an appeal is admitted by the High Court and is not expected to be listed for final hearing for a few years, an app ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
