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TMI Blog2016 (6) TMI 1034X X X X Extracts X X X X X X X X Extracts X X X X ..... 26 of the Constitution of India, to condone the delay, we are of the view that the decision of this Court in Indian Coffee Worker's Co-operative Society Ltd.,'s [2002 (1) TMI 1302 - MADRAS HIGH COURT], squarely applies to the case on hand - Condonation of delay denied - Decided against the assessee. - Writ Appeal No.589 of 2016, C.M.P.No.7766 of 2016 - - - Dated:- 13-6-2016 - S. Manikumar And D. Krishnakumar, JJ. For the Appellant : Mr. K. Senguttuvan For the Respondents : Mr. A. P. Srinivas JUDGMENT [ Judgment of the Court was made by S. Manikumar, J. ] Challenge in this appeal is to an order, made in W.P.No.5194 of 2016, dated 22.02.2016, passed by the Writ Court, declining to set aside the order made in the condone delay petition filed by the petitioner to condone 223 days in filing the appeal before the Commissioner of Service Tax (Appeals)-I, Chennai, 1st respondent herein. 2. Short facts leading to the appeal are that the appellant suffered an Order in Original No.114 of 2010, dated 29.10.2010, passed by the Additional Commissioner of Service Tax, Service Tax II Commissionerate, Chennai, 2nd respondent herein, by which, he has disallowed C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 1st respondent to decide the case on merits. On behalf of the department, the Assistant Commissioner of Central Excise, in-charge of legal section, filed a counter affidavit, opposing the prayer sought for and further contended that the Commissioner (Appeals) has no power to condone the delay beyond the statutory period. Reliance has been placed on the decisions in Singh Enterprises v. CCE, Jamshedpur reported in 2008 (221) ELT 163 (SC), Commissioner of Customs Central Excise v. Hongo India (P) Ltd., reported in 2009 (236) ELT 417 (SC), Gopinath v. CESTAT, Chennai reported in 2013 (32) STR 172 (Mad.), Albert v. Commissioner of Service Tax, Chennai reported in 2015 (37) STR 187 (Mad.) and Saradha Travels v. Commissioner of Service Tax reported in 2015 (3) STR 433 (Mad.). 5. In the counter affidavit, the Assistant Commissioner of Central Excise has further contended that though the Commissioner (Appeals) has dismissed the statutory appeal on 01.12.2014, writ petition has been filed only on 27.01.2016, with a delay of 400 days and that there was not only delay, but laches on the part of the appellant. A contention has also been made that recovery proceedings have already been i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out of a decision, enhancing compensation, in respect of acquisition of lands for public purpose to an extent of nearly ₹ 14 Lakhs, by making an upward revision of the order of 800% (From ₹ 1000/- per kanal to ₹ 8000/- per kanal). Violation of principles of natural justice has also been raised. The appeal was dismissed as time barred, being 4 days beyond time. On the above facts and circumstances, the Hon'ble Supreme Court, at Paragraph 3, ordered as follows: 3. The legislature has conferred the power to condone delay by enacting Section 51 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression sufficient cause employed by the legislature is adequately elastic to enable the courts to apply the law in a meaning- ful manner which subserves the ends of justice--that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se of the community, does not deserve a litigant-non-grata status. The Courts therefore have to be informed with the spirit and philosophy of the provision in the course of the interpretation of the expression sufficient cause . So also the same approach has to be evidenced in its application to matters at hand with the end in view to do even handed justice on mertis in preference to the approach which scuttles a decision on merits. Turning to the facts of the matter giving rise to the present appeal, we are satisfied that sufficient cause exists for the delay. The order of the High Court dismissing the appeal before it as time barred, is therefore. set aside. Delay is condoned. And the matter is remitted to the High Court. The High Court will now dispose of the appeal on merits after affording reasonable opportunity of hearing to both the sides. The above judgment deals with the delay in preferring an appeal, against the enhanced compensation for the lands acquired. General principles of law in the matter of considering an application filed to condone the delay have been set out and the reported judgment does not deal with a case, where the statute has prescribed an outer ti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cted the respondents therein to entertain the appeal and passed orders on merits, with regard to the drawback claims filed by the petitioner. In the reported case, a learned single Judge, has considered a decision of a Hon'ble Division Bench of this Court in Maheswari Fireworks Industries v. Commercial Tax Officer and Others reported in Vol. 121 STC 272, wherein, this Court, while considering the power of this Court to condone the delay in respect of appeals or revisions pending before the quasi-judicial authorities, held that the limitation applicable to the appellate authority cannot be made applicable to this Court, while exercising jurisdiction under Article 226 of the Constitution of India. 14. In Jai Hind Bottling Company (P) Ltd., v. Commr. (Appeals) C.Ex., Allahabad reported in 2002 (146) ELT 273 (All.), there was a delay of 99 days in filing an appeal to the Commissioner of Appeals. As per Section 35 of the Central Excise Act, 1944, for filing an appeal, 60 days' time is provided and if the Commissioner (Appeals) is satisfied that the appellant was prevented by sufficient cause from presenting the appeal, within the aforesaid period of sixty days, he may allow i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d period. After considering the decisions in Mohd. Ashfaq v. State Transport Appellate Tribunal, U.P., [AIR 1976 SC 2161], K.Ganesh v. State of Tamil Nadu [ 1988 STC (VOL.68) 84], Kanaka Durga Agro Oil Products Ltd., v. Commercial Tax Officer, Benz Circle, Vijayawada and another [2000 STC (Vol.119) 387] and Union of India v. M/s.Popular Construction Co., [2001 (4) CTC 213], a Hon'ble Division Bench of this Court summarised the legal position as hereunder: (a) An appeal under Section 30(1) of the Tamil Nadu General Sales Tax Act, 1959 has to be filed within 30 days before the appellate Assistant Commissioner. The appellate Assistant Commissioner is empowered to condone the delay for further period of 30 days if sufficient cause for not presenting the appeal in time is shown and satisfied by the appellate authority. (b) Under no circumstances, the appellate authority has power to condone the delay beyond 30 days. (c) While the High Court exercising the jurisdiction under Article 226 of Constitution of India, approves the correctness of the order of the appellate authority, it has no power to direct the appellate authority to consider the appeal on merits as other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te and the discretion is to be exercised in favour of entertaining the application for renewal when it is shown that there was sufficient cause for not making it in time. Now, the question which arises is : does Section 5 of the Limitation Act, 1963 apply so as to empower the Regional Transport Authority, for sufficient cause to entertain an application for renewal even where it is delayed by more than 15 days? Section 29, sub-section (2), of the Limitation Act, 1963 makes Section 5 applicable in the case of an application for renewal unless its applicability can be said to be expressly excluded by any provision of the Act. The only provision of the Act sought to be pressed into service for this purpose was sub-section (3). Does sub-section (3) expressly exclude further extension of time under Section 5? If it does, then Section 5 cannot be availed of by the appellant for condonation of the delay. Sub-section (3) in so many terms says that the Regional Transport Authority may condone the delay in making of an application for renewal and entertain it on merits provided the delay is of not more than 15 days. This clearly means that if the application for renewal is beyond time by mor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roducts Ltd., v. Commercial Tax Officer, Benz Circle, Vijayawada and another [2000 STC (Vol.119) 387]. That was a case arising under Andhra Pradesh General Sales Tax Act. In that case, the petitioner agreed for the proposed assessment and gave a letter of consent to that effect. However, long thereafter, the petitioner filed an appeal against the said assessment order with a delay of 533 days. The assessee in that case raised a contention that a turnover of ₹ 76,72,260/- representing the sale of oil extracted from oil cakes was subjected to a higher rate of tax unlike oil extracted from oil seeds, on the basis of the decision in RAJASHREE OILS EXTRACTIONS' case (1998) 111 STC 668 (AP) [FB] in which entry 24 [a] of the First schedule to the Andhra Pradesh General Sales Tax Act, 19 57 was declared unconstitutional. The appellate authority dismissed the appeal on the ground of delay. The Court ruled as under:- If the special statute prescribed a particular period of limitation for preferring the appeal, the appeal has to be necessarily filed within that date. If there is a provision for condonation of delay and sufficient cause is shown, the appellate authority can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tted against each other and the Courts would always lean in favour of substantial justice rather than technicalities for non-suiting the petitioner on the ground that the appeal has not been filed within the time stipulated in spite of the fact that the authorities are conferred with the power to condone the delay. Likewise, the limitation prescribed is not for destruction of statutory right and is only to give finality without protracting the matter endlessly. 6. Here is the case where the petitioner sought for condoning the delay 25 days and a part of which has been explained by producing the medical certificate. Hence, this Court is of the view that the second respondent ought to have condoned the delay and allowed the petitioner to have their case decided on merits. But, that course has not been adopted and the order of the second respondent has also been confirmed by the Tribunal. This Court is of the view that the orders of respondents 1 and 2 are to be set aside and the delay in filing the appeal can be condoned. Here again, absolutely, there is no question or answer by the writ Court, as to whether, the Court has powers to condone the delay, beyond the statutory ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that, If the appellant was careful enough to verify about the stage of the proceedings at any point of time and had he been misled by the counsel then only it could have been said that due to the conduct of the counsel the party should not be penalised. On appeal, the Hon'ble Supreme Court, at Paragraphs 8 to 15, held as follows: 8. Appellant's conduct does not on the whole warrant to castigate him as an irresponsible litigant. What he did in defending the suit was not very much far from what a litigant would broadly do. Of course, it may be said that he should have been more vigilant by visiting his advocate at short intervals to check up the progress of the litigation. But during these days when everybody is fully occupied with his own avocation of life an omission to adopt such extra vigilance need not be used as a ground to depict him as a litigant not aware of his responsibilities, and to visit him with drastic consequences. 9. It is axiomatic that condonation of delay is a matter of discretion of the court Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refusal to condone delay would result foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the court is always deliberate. This Court has held that the words sufficient cause under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice vide Shakuntala Devi Jain Vs. Kuntal Kumari [AIR 1969 SC 575] and State of West Bengal Vs. The Administrator, Howrah Municipality [AIR 1972 SC 749]. 13. It must be remembered that in every case of delay there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put forth as part of a dilatory strategy the court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time then the court should lean against acceptance of the explanation. While condoning delay the Could should not forget the opposite party altogether. It must be borne in mind that he is a looser and he too would have incurred quiet a large ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the High Court can condone the delay and such power is untrammeled by any statutory provision. Rejecting the above contention, at Paragraph 8, the Apex Court held as follows: 8. The Commissioner of Central Excise (Appeals) as also the Tribunal being creatures of Statute are vested with jurisdiction to condone the delay beyond the permissible period provided under the Statute. The period upto which the prayer for condonation can be accepted is statutorily provided. It was submitted that the logic of Section 5 of the Indian Limitation Act, 1963 (in short the Limitation Act) can be availed for condonation of delay. The first proviso to Section 35 makes the position clear that the appeal has to be preferred within three months from the date of communication to him of the decision or order. However, if the Commissioner is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of 60 days, he can allow it to be presented within a further period of 30 days. In other words, this clearly shows that the appeal has to be filed within 60 days but in terms of the proviso further 30 days time can be granted by the appellate auth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he two-Judge Bench taking note of the said provision and the other related provisions following Singh Enterprises v. Commissioner of Central Excise, Jamshedpur, (2008) 3 SCC 70 concluded that the High Court was justified in holding that there was no power for condonation of delay in filing reference application. 19) As pointed out earlier, the language used in Section 35, 35B, 35EE, 35G and 35H makes the position clear that an appeal and reference to the High Court should be made within 180 days only from the date of communication of the decision or order. In other words, the language used in other provisions makes the position clear that the legislature intended the appellate authority to entertain the appeal by condoning the delay only up to 30 days after expiry of 60 days which is the preliminary limitation period for preferring an appeal. In the absence of any clause condoning the delay by showing sufficient cause after the prescribed period, there is complete exclusion of Section 5 of the Limitation Act. The High Court was, therefore, justified in holding that there was no power to condone the delay after expiry of the prescribed period of 180 days. Even otherwise, for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Limitation Act. It is well settled law that it is the duty of the court to respect the legislative intent and by giving liberal interpretation, limitation cannot be extended by invoking the provisions of Section 5 of the Act. (emphasis supplied) 22. In Pay and Accounts Officer (East) v. Income-Tax Officer, TDS-III, Chennai, reported in 2010 (251) ELT 510, there was a delay of 708 days in filing an appeal and the same was dismissed by the Income-Tax Appellate Tribunal. Before this Court, by way of Tax Case Appeal, the following substantial questions of law, were formulated, 1. Whether in the facts and circumstances of the case, the Tribunal has ascertained its discretion in refusing to condone the delay in filing appeal in a proper legal perspective? 2. Whether in the facts and circumstances of the case, the Tribunal has committed a legal error in not appreciating and applying the decision of the Supreme Court in 2005(3) SCC 752 rendered in identical circumstance? 3. Whether in the facts and circumstances of the case, the Appellate Tribunal has rightly applied the test of liberal and pragmatic approach as to the sufficiency of case involving red tapism in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s been created against the appellant and if the appeal is not entertained, it will suffer irreparable injury. Learned counsel appearing for the 3rd respondent therein has submitted that in view of the plain language of the proviso to Section 125 of the Electricity Act, the Supreme Court has no power to extend the period for filing an appeal beyond 120 days and if the provisions of the Limitation Act is invoked, it would negative the legislative intent, which prescribed special limitation, for filing an appeal against any decision or order of the Tribunal. Reliance was also placed on the decision of the Hon'ble Apex Court in Popular Construction Company's case (cited supra), Singh Enterprises's case (cited supra) and Hongo India Private Ltd.,'s case (cited supra). Section 125 of the Electricity Act, 2003, reads as follows: 125. Appeal to Supreme Court:- Any person aggrieved by any decision or order of the Appellate Tribunal, may, file an appeal to the Supreme Court within sixty days from the date of communication of the decision or order of the Appellate Tribunal, to him, on any one or more of the grounds specified in section 100 of the Code of Civil Procedure, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion or order of the Tribunal. The limitation placed on the jurisdiction of this Court is that the appeal can be entertained only on one or more of the grounds specified in Section 100 of the Code of Civil Procedure. Proviso to Section 125 empowers this Court to entertain the appeal within a further period not exceeding 60 days, if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal within the said period. In other words, an appeal under Section 125 can be filed within a maximum period of 120 days if this Court is satisfied that there was sufficient cause for not filing the same within 60 days from the date of communication of the decision or order appealed against. 25. Section 125 lays down that any person aggrieved by any decision or order of the Tribunal can file an appeal to this Court within 60 days from the date of communication of the decision or order of the Tribunal. Proviso to Section 125 empowers this Court to entertain an appeal filed within a further period of 60 days if it is satisfied that there was sufficient cause for not filing appeal within the initial period of 60 days. This shows that the period of limitation prescri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egislation, namely, to provide special limitation for filing an appeal against the decision or order of the Tribunal and proviso to Section 125 will become nugatory. In Chhattisgarh State Electricity Board's case (cited supra), the Apex Court held that Section 5 of the Limitation Act cannot be invoked by the Court to allow an appeal to be filed, under Section 125 of the Electricity Act, 1963, after more than 120 days. 24. In Senior Superintendent of Post Office v. Union of India reported in 2011 (24) STR 168 (Guj.), a Hon'ble Division Bench of the Gujarat High Court, while testing the correctness of the order of dismissal of an appeal, filed after one year and also the plea that the appellate authority has power to condone the delay upto three months, at Paragraph 4, ordered as follows: 4. In that view of the matter, we find no illegality in the order under challenge. Counsel for the petitioner, however, drew our attention to the judgment of this Court in the case of D.R. Industries Ltd. and Anr. v. Union of India and ors. reported in : 2008 (3) G.L.H. 662 : 2008 (229) E.L.T. 24 (Guj.) to contend that even in such cases where there is statutory limit to which d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f an aggrieved person knocks the door of High Court seeking redressal under writ jurisdiction for valid reasons, to obviate extraordinary hardship and injustice such challenge can be entertained even beyond the period of limitation. Here again, the Hon'ble Division Bench of Gujarat High Court has observed that when an aggrieved party knocks at the door of the High Court, seeking redressal, under writ jurisdiction for valid reasons, to obviate the extraordinary hardship and injustice, such challenge can be entertained, even beyond the period of limitation. The said view is on the basis of the decision in D.R. Industries Ltd. and Anr. v. Union of India and ors. (supra), wherein, the Gujarat High Court held that in appropriate cases, extraordinary powers of the High Court can be exercised to condone the delay. Texcellence Overseas's case (cited supra) has been followed in Amitra Industries Ltd., v. Union of India reported in 2014 (305) E.L.T. 322 (Guj.). 26. In Gopinath v. CESTAT, Chennai reported in 2013 (32) STR 172 (Mad.), after considering the decision in Singh Enterprises v. Commissioner of Central Excise, Jamshedpur [2008 (221) E.L.T. 163 (SC)], this Court, at P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esented the appeal belatedly for certain other reasons, then, it would be a case, where, the Court would not exercise discretion in condoning the delay. From the facts stated above, the case on hand does not appear to be one such case as there is no dispute regarding the communications between the appellant and the department, and even in the communication, dated 08.09.2008, the Commissioner has observed that if the appellant does not accept the order, dated 14.03.2008, it is open to them to move the higher appellate forum. 29. In Ravi Pharmaceuticals Private Ltd., v. Union of India reported in 2014 (306) E.L.T. 474 (Guj.), following the decision in D.R. Industries Ltd. and Anr. v. Union of India and ors. [2008 (3) G.L.H. 662 : 2008 (229) E.L.T. 24 (Guj.)], a Hon'ble Division Bench of the Gujarat High Court remitted the matter to the adjudicating authority to consider the case of the petitioner therein, after providing him an opportunity. 30. In Rusapi Containers v. Commissioner (Appeals) reported in 2014 (36) STR 508 (Guj.), following D.R. Industries Ltd.'s case (cited supra) and on the facts and circumstances of the case, a Hon'ble Division Bench of the Gujara ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat there is no question and discussion, as to whether, the Court, in exercise of powers, under Article 226 of the Constitution of India, is empowered to issue such directions to the appellate authority to condone the delay in filing the appeal. 33. In Saradha Travels v. Commissioner of Service Tax reported in 2015 (3) STR 433 (Mad.), appeal was filed with a delay of one year and six months. The Tribunal dismissed the appeal. Adverting to the substantial questions of law, at Paragraph 9, this Court held as follows: 9. The Tribunal relied on the decision of the Honourable Supreme Court reported in 2008 (221) ELT 163 (SC) (Singh Enterprises v. CCE, Jamshedpur) which is followed by this Court in the decision reported in 2013-tiol-168-HC-Mad (M/s.Gopinath and Sharma V. CESTAT) and dismissed the appeal on the proposition that the Commissioner (Appeals) cannot condone the delay beyond the stipulated period. 34. Albert v. Commissioner of Service Tax, Chennai reported in 2015 (37) STR 187 (Mad.), was a case of an ex-parte adjudication and an appeal was filed with delay. CESTAT, Madras, dismissed the appeal, as time barred. Substantial questions of law raised were, (1) Whether ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from the date of communication of the order under sub-section (1) to the adjudicating authority, such application shall be heard by the Commissioner of Central Excise (Appeals), as if such application were an appeal made against the decision or order of the adjudicating authority and the provisions of this Chapter regarding appeals shall apply to such application. Explanation.- For the removal of doubts, it is hereby declared that any order passed by an adjudicating officer subordinate to the Commissioner of Central Excise immediately before the commencement of clause (C) of section 112 of the Finance (No. 2) Act, 2009, shall continue to be dealt with by the Commissioner of Central Excise as if this section had not been substituted.] 85.(1) Any person aggrieved by any decision or order passed by an adjudicating authority subordinate to the Commissioner of Central Excise may appeal to the Commissioner of Central Excise (Appeals). (2) Every appeal shall be in the prescribed form and shall be verified in the prescribed manner. (3) An appeal shall be presented within three months from the date of receipt of the decision or order of such adjudicating authority relati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers of Central Excise, as the case may be. (2)The Committee of Chief Commissioners of Central Excise may, if it objects to any order passed by the Commissioner of Central Excise under section 73 or section 83A [xxxx], direct the Commissioner of Central Excise to appeal to the Appellate Tribunal against the order. Provided that where the Committee of Chief Commissioners of Central Excise differs in its opinion against the order of the Commissioner of Central Excise, it shall state the point or points on which it differs and make a reference to the Board which shall, after considering the facts of the order, if is of the opinion that the order passed by the Commissioner of Central Excise is not legal or proper, direct the Commissioner of Central Excise to appeal to the Appellate Tribunal against the order. (2A) The Committee of Commissioners may, if he objects to any order passed by the Commissioner of Central Excise (Appeals) under section 85, direct any Central Excise Officer to appeal on his behalf to the Appellate Tribunal against the order: Provided that where the Committee of Commissioners differs in its opinion against the order of the Commissioner of Centr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alty levied by any Central Excise Officer in the case to which the appeal relates is five lakh rupees or less, one thousand rupees; b) where the amount of service tax and interest demanded and penalty levied by any Central Excise Officer in the case to which the appeal relates is more than five lakh rupees but not exceeding fifty lakh rupees, five thousand rupees; c) where the amount of service tax and interest demanded and penalty levied by any Central Excise Officer in the case to which the appeal relates is more than fifty lakh rupees, ten thousand rupees: Provided that no fee shall be payable in the case of an appeal referred to in sub-section (2) or sub-section (2A) or a memorandum of cross-objections referred to in sub-section (4). (6A) Every application made before the Appellate Tribunal, - a) in an appeal for grant of stay or for rectification of mistake or for any other purpose; or b) for restoration of an appeal or an application, shall be accompanied by a fee of five hundred rupees : Provided that no such fee shall be payable in the case of an application filed by the Commissioner of Central Excise or Assistant Commissioner of Central E ..... X X X X Extracts X X X X X X X X Extracts X X X X
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