TaxTMI 
TaxTMI 
2024 (1) TMI 39
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....d by the Commissioner (Appeals) was affirmed and approved by the Hon'ble Supreme Court in the case of Singh Enterprises Vs CCE Jamshedpur - 2008 (221) ELT 163 (SC). This judgement was again followed by the Hon'ble Apex Court on several occasions and is being followed by various High Courts and Tribunals consistently till date. He further submits that as on date the Supreme Court's judgement is in force and is binding on all the other authorities and Courts under its jurisdiction. Hence, he prays that the Appeals should be dismissed. 3. The Learned Authorized representative of the Appellant, Sri Rip Das, Chartered Accountant, relies on the observations and directions of the Hon'ble Calcutta High Court vide their Order dated 01.12.2022 and submits that this was not followed by this Tribunal while passing the Final Order Nos.75144-75146/2023 dated 22.03.2023. Subsequently considering their fresh WPs, the Hon'ble High Court vide their and Order dated 19.06.2023, took note that the directions / observations of the High Court were not considered and the High Court directed the same should be followed. He submits, that in another case, the Appellant had filed refund cla....
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....of the Revenue and the merits of the case as is being canvassed by the Appellant citing the observations / directions of the High Court as per their Order dated 1.12.2022. 7. Since the details of filing of the Appeals before the Commissioner (Appeals), it is important to consider the same along with the statutory provisions towards time limit set for filing the Appeals. We have to go through the chronological events in the present Appeals. The following Table shows the details of the Orders passed along with the delay in filing the Appeals by the appellant at various stages: SI No. Order-in- Original & Date Date of receipt by the appellant Date of receipt of Appeal petition in the office of the Commissioner (Appeals) No. of Months Delay Date of Receipt of OIA Date of filing Appeal before Tribunal No. of days delay in filing Appeal before Tribunal 1. 31/Refund/S T/D- II/Kol/08 dated 13.01.2009 24.01.2009 24.08.2012 43 Months (Time Limit for filing the Appeal) : 3 months + 3 months OIA ....
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.... not condoning the delay and dismissed the WPs filed by the appellant. 10) Being aggrieved, the appellant filed WPs before the Divisional Bench of the Hon'ble High Court. 11) The Hon'ble Calcutta High Court vide its Order dated 1.12.2022, noting the pleading of the appellant that on similar issue of refund, after rejection of the same at lower levels, the Tribunal has passed a favourable order and consequently they were granted refund, held that condonation is to be considered in the light of these facts and directed the Tribunal to hear the Appeals afresh. 12) Consequent to the Hon'ble Calcutta High Court's Order dated 1/12/2022, this Tribunal restored the Appeals vide Misc. Order Nos. 75016-75018/2023 dated 30.01.2023. 13) The Restored Appeals were listed for Final Hearing on 12.03.2023 before the Tribunal. 14) The Tribunal, after going through the case history and after noticing that the Appeals before the Commissioner (Appeals) were filed much beyond the period prescribed under Section 85 (3), dismissed the appeals and passed the Final Order Nos 75144-75146/2023 dated 22.03.2023. 15) Being aggrieved by these Final Orders, th....
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....y, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of two months, allow it to be presented within a further period of one month SECTION 86. Appeals to Appellate Tribunal. - (1) Save as otherwise provided herein an assessee aggrieved by an order passed by a Principal Commissioner of Central Excise or Commissioner of Central Excise under section 73 or section 83A by a Commissioner of Central Excise (Appeals) under section 85, may appeal to the Appellate Tribunal against such order within three months of the date of receipt of the Order. 10. A careful reading of the above provisions would clarify that while in respect of Appeals before Commissioner (Appeals) to be filed under Section 85, both the time limit for filing the Appeal as well as the condonable period by him are prescribed, in respect of the Appeals to be filed before Tribunal, only the time limit for filing has been prescribed. Thus, while the power to condone is conditional for the Commissioner (Appeals), the power to condone is unrestricted and open for the Tribunal. 11. As per Proviso to Section 85 (3) and....
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....ause, which prevented him to file the appeal within the statutory period of 3 (three) months from the date of receipt of the decision or order of such adjudicating authority. 4. I find that the subject 3(Three) appeals were received in this office after the period of 3 years 7 months and 1 day (three years seven months and one day), 3 years 4 months and 1 day (three years seven months and one day), 3 years 4 months and 13 days (three years four months and thirteen days) and 3 years 1 month and 14 days (three years one month and fourteen days) respectively, along with an application for condonation of delay for late filing of the appeal in respect of all the 3 (three) appeals. The cause of delay mentioned by the appellant in all the three applications for condonation of delay are that; their office was under repair and in the process and due to inadvertence the relevant documents including the Orders-in-Original got misplaced in their office; the dealing executive of the Service Tax matters resigned from the service of the Company and left without handing over of charge and due to his absence, the Company was handicapped and could not pursue the matter. However, I find that ....
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.... to how the COD is to be considered, the condonation is granted subject to the appellant providing proper reason / explanation for filing the appeal in a delayed manner. The condonation is not a matter of right but is subject to the appellant bringing in proper justification towards the delayed filing. 19. In the present case, the Appellant had filed Miscellaneous Application for Condonation of Delay, stating reasons as under : 1. Being aggrieved by the said Appeal Order passed by the Ld. CCE (A), your petitioner preferred to file this petition before this Honourable Bench and your petitioner humbly prays before your honour's to hear the application on merit only and to set aside the Appeal Order passed by the Ld. CCE(A). Your petitioner also humbly prays before this Honourable Bench to condone the delay in filing the Appeal Petition for no intentional delay on the part of your Appellant. Further, to state that if the Appeal Petition is not filed on time then your petitioner is the only sufferer and no public at large is affected by such delay. The Court would always lean in favour of substantial justice rather than technicalities for non-suiting the peti....
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....ng them to file their Appeals before the Tribunal. This is being discussed in the subsequent paragraphs 24. The Hon'ble Calcutta High Court vide their Order dated 9.11.2022, has held as under [Relevant extracts] : 9. The learned Tribunal was of the opinion that there is inordinate delay and no reasonable explanation had been done. The settled legal position is that non benefits by lodging an appeal belatedly unless and until there are mala fides attributed to the appellant for not preferring the appeal petition within the time prescribed under the statute. Likewise, it is also equally well-settled that a person, who has not been diligent and who has slept over the matter, cannot be forwarded by the Courts and Tribunal by exercising discretion in his/her favour. 10. Thus, we are required to see as to whether the appellant falls in any one of the aforementioned category of cases. Under normal circumstances, we would have dismissed the appeal right away but however, what has prompted us not to do so is on account of a development which had culminated in an order passed by the Assistant Commissioner of Central Excise, Bidhannagar Division dated 10th April, ....
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....the learned Tribunal to be considered afresh. The learned Tribunal is requested to take note of the observations made by us, more particularly the fact that the department for the earlier period, i.e. from April, 2008 to September, 2008 has accepted the classification adopted by the appellant on the specified services. 25. This High Court Order, on its own does not condone the delay in filing the appeal before the Tribunal, but has directed the Tribunal to consider the other facts brought in before the High Court, so as to condone the delay, restore the Appeals and consider the facts brought in by the appellant with regard to subsequent refund claims being granted. As per the directions of the Hon'ble High Court, admittedly, this Tribunal vide its Order Nos.75016-75018/2023 dated 30.01.2023, restored the Appeals. 26. From the above Order of the High Court, it is observed that the primary issue before them was the non-condonation of the delay by the Tribunal while dismissing the Appeals. Based on other factual details about refund being granted for the subsequent period, brought in for the first time by the appellant before the High Court, it has taken cognizance....
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....ervice of the Company and left without handing over of charge and due to his absence, the Company was handicapped and could not pursue the matter. However, I find that as per proviso to Section 85(3) of Finance Act, 1994, Commissioner (Appeals) is empowered to condone only a delay of (3) three months, provided the appellant shows sufficient cause, which prevented him to file the appeal within the statutory period of 3 (three) months, whereas in the present appeals the delay is more than 3(three) months. Hence the 3 (three) appeals filed by the appellant are barred by limitation of time and so they are not admissible. 29. As observed supra, the appellant has concealed and misguided the Hon'ble High Court, which in its good faith on the belief that the appellant was the victim, ordered the Appeals to be restored and to be taken up for Final Hearing. 30. The Appeals came up for Final Hearing on 22.3.2023. Admittedly the same Authorized Representative Sri RIP Das, Chartered Accountant was once again representing the Appellants. In the course of arguments by both the sides, the Departmental Representative of Revenue drew the attention to the issue of the delay in fi....
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....ant Sri Rip Das has appeared argued the case. There is nothing on record to state that he had opposed the view taken by the Bench to dismiss the Appeal on the ground that the Appeals were filed way beyond the condonable period before the Commissioner (Appeals). They have not disputed that the Appeals were filed beyond Six Months [3 months for filing appeal + 3 months available to Commissioner (Appeals) for condonation]. Nor is there any evidence that he has brought to the knowledge of the Tribunal that the observations of the High Court on merits are required to be considered and the same was not considered by the Bench. He was also present when the Order was dictated in the open Court. He did not raise any objection for the reasons cited by the Tribunal for dismissing the Appeals in the Final Orders being dictated by the Hon'ble Member (Judicial). 32. Immediately after the Final Order Nos.75144-75146/2023 dated 22.03.2023, were passed by the Tribunal, the appellant with quick footed dexterity, which by now has become the hallmark of the appellant, he has immediately once again filed the WP before the High Court playing out his victim card. This time around, their grou....
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.... appears from record and submission of the parties, I am of the view that the aforesaid impugned order is total non-application of mind and is non-speaking order and I am also of the view that no useful purpose will be served in keeping the writ petition pending and the matter should be remanded back to the sales tax authority tribunal to pass a fresh order after taking into consideration the observation made by the Hon'ble Division Bench of this Court in paragraph 13 of the aforesaid judgment dated 1st December, 2022. With the observation and direction, these writ petitions being WPA 12130 of 2023, WPA 13253 of 2023 and WPA 13689 of 2023 are disposed of. 34. Considering the above chronological events in the present case, wherein multiple Writ Petitions have been filed before the Hon'ble Supreme Court, resulting in their Orders, in the present proceedings, the Tribunal has taken utmost care to discuss the entire issue threadbare for arriving at the conclusion. Proper opportunity has been given to the appellant to present his submissions and they have been allowed to file further documents. All these have been taken into consideration, for arriving at the final conc....
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....ows that it is a considered, deliberated, specific intent of the Legislature to prescribe the specific time limit to condone the delay by the Commissioner (Appeals). 40. Coming to the facts of the present Appeals, there is absolutely no dispute and also clearly admitted by the Appellant that they have filed the Appeals before the Commissioner (Appeals), after more than 43 months, 40 months and 37 months, way beyond the condonable period of Three Months by the Commissioner (Appeals) as prescribed under Section 85 (3). Noting the same, he has held as under in the OIAs: 4. I find that the subject 3(Three) appeals were received in this office after the period of 3 years 7 months and 1 day (three years seven months and one day), 3 years 4 months and 1 day (three years seven months and one day), 3 years 4 months and 13 days (three years four months and thirteen days) and 3 years 1 month and 14 days (three years one month and fourteen days) respectively, along with an application for condonation of delay for late filing of the appeal in respect of all the 3 (three) appeals.......However, I find that as per proviso to Section 85(3) of Finance Act, 1994, Commissioner (Appeal....
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....ppellant 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 authority to entertain the appeal. The proviso to subsection (1) of Section 35 makes the position crystal clear that the appellate authority has no power to allow the appeal to be presented beyond the period of 30 days. The language used makes the position clear that the legislature intended the appellate authority to entertain the appeal by condoning delay only upto 30 days after the expiry of 60 days which is the normal period for preferring appeal. Therefore, there is complete exclusion of Section 5 of the Limitation Act. The Commissioner and the High Court were therefore justified in holding that there was no power to condone the delay after the expiry of 30 days period. 10. Sufficient cause is an expression which is found in various statutes. It essentially means as adequate or enough. There cannot be any straitjacket formula for accepting....
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....te, has been relied on several occasions in several subsequent Supreme Court and High Court judgements. Some of the these cases discussed below : 2010 (257) E.L.T. 3 (S.C.) AMCHONG TEA ESTATE Vs UNION OF INDIA 4. The appellant herein challenged the order dated 9-7-2003 passed by the Deputy Commissioner, Central Excise, Gauhati by filing an appeal before the Commissioner (Appeals). The said appeal was filed on 6-102004 and by an order dated 15-10-2004, the Commissioner (Appeals) rejected the application filed by the petitioner seeking condonation of delay on the ground that the appeal is barred under the provisions of Section 35 of the Central Excise Act. 5. The aforesaid order of the Commissioner (Appeals) was challenged before the learned Single Judge of the Gauhati High Court. By an order dated 3-6-2008, the learned Single Judge held that sufficient ground is not made out for condonation of delay, even assuming that such a power is vested on the Commissioner (Appeals) to condone delay beyond a period of 30 days. The said order of the learned Single Judge was challenged before the Division Bench of the High Court, which dismissed the appeal hold....
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....s barred by 71 days. The appeal was listed before the Bench on 29.1.2010 on which date this Court condoned the delay and admitted the appeal. When the matter was taken up for hearing today, Ms. Ranjeeta Ramachandran, learned counsel appearing for the 1st respondent raised a preliminary objection that this Court could not have condoned the delay of 71 days in view of the language employed in Section 125 of the Act and further the condonation of delay by this Court was done without notice to the respondent and hence, deserves to be recalled and as a sequitor, the appeal has to be dismissed without any adverting to the same on merits. 3. Section 125 of the Act reads as follows:- "125. Appeal to Supreme Court.--(1) 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,1908 (5 of 1908): Provided that the Supreme Court may, if it is satisfied that the appellant was prevented by sufficient cause from filing the appea....
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..... We are singularly concerned with entertaining of an application for condonation. If the delay is statutorily not condonable, the delay cannot be condoned. 50. In the above case, the issue was whether the Supreme Court, for the Appeals preferred before it, whether it can condone the delay of over 60 days of condonable period. After going through the Section 125 of the Electricity Act 2003, it held that it has no power to do so and held that even Section 5 of the Limitation Act, cannot overcome the time limit of 60 days specified under Section 125. In this case, mere delay of 71 days [11 days over the specified condonation of period of 60 days] was considered enough to deny the condonation and it was held that the issue need not be heard on merits. 51. From the above judgements of Hon'ble Supreme Courts discussed supra, it is crystal clear that Commissioner (Appeals) has no power to condone the delay beyond 30 days / 90 days. The judgments affirm and approve the decision of the Commissioner (Appeals). Further as held by Supreme Court, there is no power vested with the Tribunal, High Court and Supreme Court to condone this delay of more than 30 / 90 days occurri....
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....ibunal went into the merits and finding that proper justification has not been done, remanded the matter back to the Adjudicating authority. 57. Since in that case, the matter was being contested purely on merits both at Commissioner (Appeals) level and at the Tribunal level, unlike in the present case, the Tribunal took up the appeals and decided the issue on merits. On the other hand, the Appellant has filed the present Appeals with a delay of 37 to 43 months and they were rejected by the Commissioner (Appeals) on that count alone. Even before the Tribunal, the Appeals were filed with a delay of over 1900 days. However, due to the High Court's Order dated 1.12.2022, the appellant was able to get over the hurdle of this enormous delay, resulting in taking up of these Appeals by the Tribunal for Final Hearings. Therefore, the earlier Final Orders dated 15.09.2017, cited by the appellant by the appellant is clearly distinguishable on facts. Hence, that Final Order cannot be applied to the facts of the present case. 58. As has been observed by us in the earlier paragraphs, the appellant has resorted to concealment of materials facts before the Hon'ble ....