TaxTMI 
TaxTMI 
2008 (9) TMI 35
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....nly) aggregating Rs. 25,78,005/- (Rupees Twenty Five Lakh Seventy Eight Thousand and Five only) and all such claims were held to be untenable by four letters issued by the learned Asst. Commissioner, Rourkela-II bearing Nos. (1)V(10)10 /Rebate/RKL-II/2005 /942 dt. 17-3-06, (2) IV(10)12/Rebate/RKL- II/2005/940 dated 17-3-06, (3) IV(10)11/Rebate/RKL-II/2005/941 dated 7-3-06 and (4) IV(10)9 /Rebate /RKL-II/2005 /943 dated 17-3-2006. 2. Appeal case No. 512/07 was filed by Revenue against order dated 27-2-2007 passed by the learned Commissioner (Appeals) entitling the Respondent to the refund of duty holding the claim tenable under the law while Authority below denied rebate claim of Rs. 25,97,680/-(Rupees Twenty Five Lakhs Ninty Seven Thousand Six Hundred and Eighty only) to the Respondent by order dated 31-5-2006. 3. Both the Appeals aforesaid were filed by Revenue on 6-9-2007. Appeal Memo in the case of Appeal No. 511/07 and Appeal No. 512/07 exhibit that the impugned orders were served on the Revenue Appellant on 31-5-2006 and on 13-3-2007 respectively. As per Section 35B(3) of the Central Excise Act, 1944 (hereinafter referred to as "the Act") an Appeal is required to be file....
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....did not state whether the delay so attributed was for "sufficient cause" calling for exercise of jurisdiction by Tribunal under Section 35B(5) of the Act. Revenue was accordingly directed to file an affidavit explaining why there was delay in constituting the Committee as required by Section 35(2) of the Act and the matter was adjourned to 16-5-2008. On that day when no affidavit came out from Revenue's side, a speaking order was passed directing C.B.E. & C. to file appropriate affidavit before the next date of hearing fixed to 8-7-2008 explaining reason of delay in constituting the Committee for review of the impugned order u/s 35B(2) of the Act. However when the matter was called on 8-7-2008 there was no affidavit filed by the Board for which the matter was again adjourned to 28-7-2008. Finally the matter came to board on 19-8-2008 and on that day learned Representative for Revenue filed affidavits in both the cases. 8. Various events and affirmations in both the affidavits were only basis to examine whether there existed "sufficient cause" prior to limitation leading to delay in seeking appeal remedy by Revenue and whether that calls for exercise of discretion by Tribunal u/s....
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....87/2007 dated 20-3-2007 was issued giving additional charge to CCE, Ranchi for Review purpose. (Para-5 of Affidavit) Office Order No. 87/2007 dated 20-3-2007 was issued giving additional charge to CCE, Ranchi for Review purpose. (Para-3 of Affidavit). 9-5-2007 Govt. posted a regular Commissioner to Bhubaneswar-I Commissionerate while Bhubaneswar-II Commissioner was transferred and Commissioner of Bhubaneswar-I held additional charge of Bhubaneswar-II Commissionerate. [Para of Affidavit] Govt. posted a regular Commissioner to Bhubaneswar-I Commissionerate while Bhubaneswar-II Commissioner was transferred and Commissioner of Bhubaneswar-I held additional charge of Bhubaneswar-II Commissionerate. [Para … of Affidavit] 13-6-2007 Such fact established conscious Knowledge of legal cell of CBE&C Legal Cell of CBEC noticed that review work was suffering after transfer of Sri Haokip who was Commissioner, Bhubaneswar II. (Para-8 of Affidavit) 16-6-2007 Board decided that CCE, Ranchi shall hold additional charge of Bhubaneswar-II for review purpose. (Para-8 of Affidavit) Board decided that CCE, Ranchi shall hold additional c....
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.... Tribunal between April 2006 till July 2007 as per details furnished by him in Page 4 and 5 of his written memo, the reason why these two appeals which were due to be filed on 31-8-2006 and 12-6-2007 respectively were not filed was best known to them. Therefore Revenue's averments on delay Condonation Applications as well as affidavits are totally baseless. He argued that legislature did not prescribe limitation loosely. Time barred Appeals should not receive consideration on mere blame of Commissionerate to C.B.E. & C. for failing to constitute committee. Lack of Communication between different wings of C.B.E. & C. itself proves their disregard to law establishing no "sufficient cause" existed to condone delay following the decision of Hon'ble Supreme Court in the case of Union of India v. Tata Yodogawa Limited - 1988 (38) E.L.T. 739 (S.C.). (C) Filing of 38 Appeals by Revenue during impugned period as stated above is sufficient enough to dismiss the delay Condonation Applications which are truth less and devoid of merit. From Para-4 of the affidavits it is clear that the Board as early as 30-6-2006 was aware of the fact that there was no Committee to review the orders appealed....
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.... there cannot be two parallel orders by review by two different Authorities viz., one by the learned Commissioner, Bhubaneswar-II and the other by the so called Committee constituted belatedly. Also when right of appeal was not exercised duly, other side cannot be put to adverse after limitation. (G) Power conferred under Section 35B(5) of the Act on the Tribunal is to look into whether there existed "sufficient cause" before limitation which is a pre-condition for exercise of jurisdiction. Delay can be condoned if there is sufficient cause existing before limitation but not subsequent to limitation prescribed. It was all along within the knowledge of C.B.E. & C. that there was a vaccum and no committee existed. Therefore lateral act of constitution of Committee on 19-6-07 when limitation expired on 31-8-06 and 12-6-07 shall not help Revenue. He relied on the decision in the case of CC (Prev.), Kolkata v. Narendra Kumar Taparia - 2008 (225) E.L.T. 141 (T) = 2008 (85) RLT 417 (CESTAT-KOL). He further placed reliance on the Apex Court decision in the case of Collector of Central Excise v. M.M. Rubber Co. - 1991 (55) E.L.T. 289 (S.C.) to argue that any review order passed beyond pe....
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....xceptions specifically provided in that provision itself. Delay cannot be condoned as a matter of right or on the mere asking of the party. It is expected of the Court to exercise such discretion as per settled guidelines and is inevitable for a party to show a sufficient cause while requesting the Court to exercise such discretion in favour of the Applicant. In the case of Shanti Devi v. State of Haryana and Ors., 1999 (5) S.C.C. 703, the Supreme Court held that delay should be explained properly and sufficient cause should be shown before the court can condone the delay. Further, in the case of K. Aya Thayalnayagiammal v. T.V. Thomas, JT 2000 (7) S.C. 384, the Supreme Court further held that the order of the Supreme Court in condoning the delay of 1510 days in filing the appeal was not proper exercise of jurisdiction as no proper explanation has been rendered by the applicant." (emphasis supplied) 14. "Sufficient cause" is an expression which essentially means adequate or enough reason. If reasons of delay explained are irrational that makes prayer for condonation fatal since right of other side to be free from litigation after limitation cannot be negated. Condonation of dela....
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....t or circumstances, arising before limitation it were not possible to file the appeal within time. No event or circumstances arising after the expiry of limitation can constitute such sufficient cause. There may be events or circumstances subsequent to the expiry of limitation which may further delay in filing of appeal. But that limitation has been allowed to expire without the appeal being filed must be traced to a cause arising within the period of limitation. Initial appreciation by the learned Commissioner, Bhubaneswar-II facilitated grant of refund. That itself is sufficient enough to observe that there appeared to have no cause for filing of Appeal against the order appealed. Subsequent events do not provide any basis to constitute "sufficient cause". When law of limitation was well-known to the learned Commissioner, Bhubaneswar-II while approving the orders appealed, he preferred to forgo right of appeal by Revenue. Revenue could not highlight to appreciate that steps were taken prior to limitation to constitute Committee but that could not be done for reasons beyond its control. Rather averments in Affidavits depicted in the chart aforesaid bring out clearly that there was....
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.... of Excise and Customs for taking necessary corrective steps to safeguard the public revenue (emphasis supplied)". 20. Hon'ble Supreme Court in the case of Union of India v. Upper Ganges Sugar & industries Ltd. - 2005 (179) E.L.T. 277 (S.C.) had observed callousness and negligence on the part of Revenue Authorities. These two appeals like so many others on our Board for the last few months also indicate negligent and callous manner in which Revenue is dealing with litigation. Matter after matter we have noticed failure of Revenue to fulfill statutory requirement of filing of Appeal duly or explaining sufficient cause in case of delay. Even with the stakes being so high there is apparent callousness and negligence on the part of Revenue Authorities. To cite few cases noticed by us were : (A) 2007 (212) E.L.T. 285 (Tri.-Kol.) - CCE, Siliguri v. Mukta Biri Factory. (B) 2007 (216) E.L.T. 528 (Tri.-Kol.) - CCE, KOL-VI v. G.A. Danielli India Ltd. (C) 2007 (216) E.L.T. 383 (Tri.-Kol.) - CCE, BBSR.I v. Indian Plastics Ltd. (D) 2007 (218) E.L.T. 90 (Tri.-Kol.) = 2007 (8) S.T.R. 248 (T) - CCE & C, BBSR-II v. Gupta Steels (P) Ltd. (E) 2007 (218) E.L.T. 711 (Tri.-Kol.) - CCE-....
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....ax Officer & Others - 2008-TIOL-433-HC-MUM-1T, in Paragraph 31, it has been observed by the Hon'ble High Court that "Where there is unreasonable and unexplained delay on the part of the authorities concerned in instituting the Appeals within the period of limitation it is detrimental to the public revenue, it is also opposed to public policy and good governance of the Department. Furthermore, the case where the law is in favour of the Department or where departmental appeal makes out a good case as understood in common parlance, because of inordinate and unexplained delay, if it is dismissed as barred by time as Courts decline to hear the matters on merits, it will have adverse consequences." It has been further observed therein that "It will also be desirable to fix responsibility of the officers while introducing the mandate of public accountability for default in performance of duties. The doctrine of public accountability would require the authorities to act timely and be responsible for their acts." In para 30 of the above cited decision of the Hon'ble Bombay High Court, it has also been observed that "we consider it as the duty of the Court to ensure due compliance of law.....