‘SUFFICIENT CAUSE’ TO CONDONE DELAY INCLUDES FINANCIAL DIFFICULTY TO MAKE MANDATORY PRE DEPOSIT

[Jayaprakash Gopinathan]

To prefer an appeal before Commissioner (Appeals) or before CESTAT, readers are aware that it is mandatory to make pre deposit of 7.5%/ 10% of duty demanded or penalty imposed by the original authority or when the 1^st appellate authority uphold the decision of the original authority.  The appellate authorities won’t accept  the appeal memorandum without evidencing payment of mandatory pre deposit as provided under Section 35F of Central Excise Act, 1944 /129E of Customs Act, 1962. If the process of submission is by post or courier, defect memo will be issued by the competent authorities directing production of details of mandatory pre deposit made and failure will result in dismissal of the appeal filed. In case if the appellant failed to file the appeal on time, the Commissioner (Appeals) vide Section 128(1) of Customs Act, 1962 and  the CESTAT vide Section 129(5) of Customs Act, 1962 are empowered to condone the delay.  However if the appellant present application for Condonation of delay citing difficulty in augmenting funds for making pre deposit  prescribed as the reason for delay, the appellate  tribunals often refuse to accept it as a ‘sufficient cause’ to condone the delay and  used to dismiss the appeals. The Hon’ble High Court of Karnataka in A. DASNIVAS FERNANDO VERSUS THE COMMISSIONER OF CENTRAL EXCISE AND SERVICE TAX BANGALORE-III [2020 (12) TMI 921 - KARNATAKA HIGH COURT] has held that financial difficulty for making predeposit on time is also to be considered as a sufficient cause to condone the delay in filing the appeal. The Hon’ble Court vide paras 5&6  of the judgment held as follows:-

5.         It is well settled in law that the expression “sufficient cause” should receive liberal consideration so as to advance the cause of justice and the same should not be used as a penal statute to punish the erring parties.[see ‘Perumon Bhagvathy Devaswom, Perinadu Village Versus Bhargavi Amma (Dead) By LRs & Ors. - 2008 (7) TMI 836 - Supreme Court, KATARI SURYANARAYANA & ORS. Versus KOPPISETTI SUBBA RAO & ORS. - 2009 (4) TMI 904 - Supreme Court and Assistant Commissioner (CT) LTU, Kakinada & Ors. Versus M/s. Glaxo Smith Kline Consumer Health Care Limited - 2020 (5) TMI 149 - Supreme Court]

6.         In the back drop of afore said well settled principles, the facts of the case in hand may examined. In the application for Condonation of delay, the appellant had stated that on account of the financial difficulty, he could not arrange the amount and   the delay had caused. Taking into consideration that the expression ‘sufficient cause’ should receive liberal consideration so as to advance the cause of justice, we answer the substantial question of law framed in this appeal in favour of the assessee and against the Revenue.

This judgment, it appears, is equally applicable to cases under GST law and the competent appellate authorities will consider financial difficulty in securing fund for making pre deposit for filing appeals as a ‘sufficient cause’ for condoning delay in filing appeals instead of forcing assessee to approach higher courts for justice.