9911796707
TMI Blog2019 (2) TMI 1109X X X X Extracts X X X X X X X X Extracts X X X X ..... eeking such condonation of delay. In the present case when the order in original under challenge was dated 26.03.2018 and was received by the Committee of Chief Commissioners on 25.04.2018, can delay in filing the appeal that was to be filed by 24.04.2018 be attributed to the implementation of GST. GST as stated earlier was implemented with effect from 1st July 2017. In this case the order in original is dated 26.03.2018, i.e. nearly nine months after such implementation. Another interesting feature to be noted in this case is Committee of Chief Commissioner gives an order for review on 23.08.2018, received by the Commissioner on 24.08.2018, i.e. the last date for filing the appeal. When Committee of Chief Commissioner orders for review was received by the Commissioner, that day itself was last day for filing the appeal - This delay in undertaking the statutory obligation caused on the reviewing authority could not be explained in the manner sought to be explained. In the present case no sufficient cause has been shown for delay in presenting the appeal in present case, as is required to be shown in terms of Section 86 (5) of the Finance Act, 1994. In absence of any such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bove and not malafide. I say that the Appellant has a very strong case on merits. I further say that grave prejudice would be caused to the Appellant if the delay in filing above Appeal is not condoned and the appeal is not heard on merits. Whereas prejudice of any nature a whatsoever would be caused toe the Respondents as their right to de3fend the appeal would remain intact. I say that the delay caused in filing appeal is inadvertent and not deliberate. I say that balance of convenience lies in favour of the Appellant. 6. It is respectfully submitted that this Hon ble Tribunal does take liberal and judicial approach, guided by paramount consideration of not depriving the litigant ordinarily of adjudication of its right on merit. It is further submitted that when substantial ad technical consideration are pitted against each other, cause of substantial justice deserve to be preferred. The Appellant has very good case on merits and is likely to succeed in appeal. 3.1 The power to review the Order in Original passed by the Commissioner/ Principal Commissioner has been vested to the Committee of Chief Commissioner as per Section 86 (2) of the Finance Act, 1994 and appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the relevant period department was undergoing restructuring on account of introduction of GST (Goods and Service Tax). Since introduction of new scheme of taxation involved voluminous re-organization and restructuring of the Commissionerates, there has been delay in filing the appeal. In his view the delay in filing the appeal has been substantially explained by the jurisdictional Commissioner in his affidavit dated 10th January 2019. In interest of justice he requested the application for condonation of delay should be considered sympathetically and allowed. He also relied on the decision of Hon ble Bombay High Court in case Commissioner of Central Tax Central Excise Versus Brihan Mumbai Municipal Corporation. [2018 (362) ELT 942 (BOM)]. 4.3 Learned Advocate arguing on behalf of respondents submitted that the application in the present case needs to be dismissed as no sufficient cause has been shown explaining the delay in filing the appeal. He placed on record letter dated 29.09.2017 (issued from F NO 390/Review/49/2017-JC) of Central Board of Excise and Customs in his support. 5.1 We have considered the ground made for seeking the condonation of delay in the presenting t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed. 5.7 Further can in the present case when the order in original under challenge was dated 26.03.2018 and was received by the Committee of Chief Commissioners on 25.04.2018, can delay in filing the appeal that was to be filed by 24.04.2018 be attributed to the implementation of GST. GST as stated earlier was implemented with effect from 1st July 2017. In this case the order in original is dated 26.03.2018, i.e. nearly nine months after such implementation. This order has been received by the Committee of Chief Commissioners on 25.04.2018, i.e. nearly ten months after the date of implementation of the GST. It is no where stated that after the date of order in original and date of receipt of order by the committee of chief commissioners there has been organizational and structural changes in the scheme of things. It is not even stated that any filed was transferred from one jurisdiction to any other jurisdiction after the said dates. We do not find any reason to accept the reasons for delay in filing the appeal can be attributed to implementation of GST. 5.8 Learned Authorized Representative, has during course of argument strongly relied upon the decision of Bombay High Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otion for the delay in filing the Appeal. Thus, delay condoned. 5.9 From the facts as referred in the above decision it is quite evident that the approval for filing the appeal was taken towards end of June 2017, and GST was introduced from 1st July 2017. After introduction of GST and on account of restructuring certain files were in relation to the appeal to be filed before the High Court were transferred from one jurisdiction to another jurisdiction. It was as result of such shifting of files from one jurisdiction to another on account of re-structuring and reorganization as sequel to implementation of GST, there was delay in filing the appeal. In that case the delay in filing the appeal was adequately explained. However in the present case even the adjudication order is passed after implementation of GST and there is no turmoil in handling the files on account they being shifted from one jurisdiction to another. In the present case jurisdiction of the Commissioner and Committee of Chief Commissioner during the period of delay has not under gone any change or re-structuring. Hence this decision of the Hon ble Bombay High Court cannot be made applicable in the present case. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sant with the issues involved including the prescribed period of limitation for taking up the matter by way of filing a special leave petition in this Court. They cannot claim that they have a separate period of limitation when the Department was possessed with competent persons familiar with court proceedings. In the absence of plausible and acceptable explanation, we are posing a question why the delay is to be condoned mechanically merely because the Government or a wing of the Government is a party before us. Though we are conscious of the fact that in a matter of condonation of delay when there was no gross negligence or deliberate inaction or lack of bonafide, a liberal concession has to be adopted to advance substantial justice, we are of the view that in the facts and circumstances, the Department cannot take advantage of various earlier decisions. The claim on account of impersonal machinery and inherited bureaucratic methodology of making several notes cannot be accepted in view of the modern technologies being used and available. The law of limitation undoubtedly binds everybody including the Government. 13) In our view, it is the right time to inform all the ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
