CONDONATION OF DELAY AN EXCEPTION NOT TO BE USED AS ANTICIPATED BENEFIT FOR GOVERNMENT/BUREAUCRATIC NEGLIGENCE

[Mr. M. GOVINDARAJAN]

Section 86(1) of the Finance Act, 1994 provides for filing appeal before the Tribunal against the order of Commissioner of Central Excise (Appeals) under Section 73 or Section 83A or an order passed by a Commissioner of Central Excise under Section 85, may appeal to the Appellate Tribunal against such order within three months of the date of receipt of the order. Section 86(5) of the Act provides that the Appellate Tribunal may admit an appeal after the expiry of the relevant period if it is satisfied that there was sufficient cause for not presenting it within that period.

In ‘Bharat Sanchar Nigam Limited V. Commissioner of Central Excise, Jaipur-II’ – 2013 (7) TMI 780 - CESTAT NEW DELHI the appellant filed an application seeking condonation of a delay of 72 days in preferring the appeal. The reasons for the delay in submission of the appeal are as below:

• The order of Commissioner (Appeals), dated 28.2.2012 was received on 2.3.2012;
• On 26.3.2012 the petitioner addressed the Chartered Accountant to furnish legal opinion with regard to the action to be taken against order of Commissioner (Appeals);
• The Chartered Accountant was reminded on 04.05.2012 and 08.06.2012;
• On 8.7.2012 the Chartered Accountant addressed the company stating that the company has a good case on merits but the period of limitation is over and the appeal should be filed with an application for condonation;
• Thereafter the petitioner wrote to its Corporate Office at New Delhi for appointment of an advocate;
• On 13.07.2012 the Corporate office wrote back to the appellant permitting the petitioner to file an appeal and suggesting the name of the Advocate to be engaged for filing the appeal;
• The officers of the petitioners called on the Advocate, New Delhi on 26.07.2012 for discussed and preferring of the appeal;
• The appeal was filed causing the delay of 72 days.

The petitioner relied on the judgment of the Supreme Court in ‘State of UP and others V. Harish Chandra and others’ – 1996 (4) TMI 121 - SUPREME COURT OF INDIA and contended that delays inherent in a bureaucratic processes must be considered justification for delay in pursuing litigation.

However the Tribunal noticed a recent judgment of Supreme Court in ‘Chief Post Master General V. Living Media India Limited’ – 2012 (4) TMI 341 - SUPREME COURT OF INDIA. The Supreme Court observed- “It is not in dispute that the person(s) concerned were well aware or conversant 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 bona fide, 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.”

The Supreme Court further observed – “In our view, it is the right time to inform all the government bodies, their agencies and instrumentalities that unless they have reasonable and acceptable explanation for the delay and there was bonafide effort, there is no need to accept the usual explanation that the file was kept pending for several months/years due to considerable degree of procedural red-tape in the process. The government departments are under a special obligation to ensure that they perform their duties with diligence and commitment. Condonation of delay is an exception and should not be used as an anticipated benefit for government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few. Considering the fact that there was no proper explanation offered by the Department for the delay except mentioning of various dates, according to us, the Department has miserably failed to give any acceptable and cogent reasons sufficient to condone such a huge delay.” The Supreme Court dismissed the appeal on delay.

The Tribunal considering the judgment of Supreme Court in the above case did not satisfy the reasons given by the petitioner and rejected to condone the delay. The Tribunal dismissed the appeal also.

Accordingly, the appeals are liable to be dismissed on the ground of delay.