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TMI Blog2012 (10) TMI 819X X X X Extracts X X X X X X X X Extracts X X X X ..... efund claims. 2. The Assistant Commissioner had rejected the claims for refund filed by the assessee under Rule 5 of Cenvat Credit Rules, 2004 on the ground that input services on which the appellants had availed Cenvat credit, were not eligible input services, relying upon the order passed by the Additional Commissioner of Central Excise, Gurgaon wherein Cenvat credit on service tax paid on several input services received by the applicants, an EOU unit was denied on the ground that services received by the unit were not eligible input services. However, the order of the Additional Commissioner was set aside by the lower Appellate Authority and in the light of his order, the assessee became eligible to refund of unutilized credit of i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as seeking to join both the issues that is the issue of refund of unutilized cenvat credit of input services and the issue of availability of Cenvat credit of the input services to the appellants. The appellants finally concluded that till the time the order of the Additional Commissioner denying them the credit of the input services is set aside by an appellate authority or it attains finality their refund of the unutilized Cenvat amount will not be processed and department will keep on joining both the issues and as such no worthwhile purpose can be served in filing appeal before the Commissioner (Appeals)." 3. The further submission of the assessee that against the impugned orders challenged in the present appeals, the assessee pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In the case of Union of India v. Tata Yodogawa Ltd., [1988 (38) Excise Law Times 739 (S.C.)], this Court while granting some latitude to the Government in relation to condonation of delay, still held that there must be some way or attempt to explain the cause for such delay and as there was no whisper to explain what legal problems occurred in filing the Special Leave Petition, the application for condonation of delay was dismissed. Similarly, in the case of Collector of Central Excise, Madras v. A.Md. Bilal & Co., [1999 (108) Excise Law Times 331 (S.C.)], the Supreme Court declined to condone the delay of 502 days in filing the appeal because there was no satisfactory or reasonable explanation rendered for condonation of delay. The provisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r called for. If we accept the contention of the Learned Counsel appearing for the applicant that the Court should take a very liberal approach and interpret these provisions (Order 22 Rule 9 of the CPC and Section 5 of the Limitation Act) in such a manner and so liberally, irrespective of the period of delay, it would amount to practically rendering all these provisions redundant and inoperative. Such approach or interpretation would hardly be permissible in law. Liberal construction of the expression 'sufficient cause' is intended to advance substantial justice which itself presupposes no negligence or inaction on the part of the applicant, to whom want of bona fide is imputable. There can be instances where the Court should condone the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Edition, 2005]. 15. We feel that it would be useful to make a reference to the judgment of this Court in Perumon Bhagvathy Devaswom (supra). In this case, the Court, after discussing a number of judgments of this Court as well as that of the High Courts, enunciated the principles which need to be kept in mind while dealing with applications filed under the provisions of Order 22, CPC along with an application under Section 5, Limitation Act for condonation of delay in filing the application for bringing the legal representatives on record. In paragraph 13 of the judgment, the Court held as under :- "13 (i) The words "sufficient cause for not making the application within the period of limitation" should be understood and applie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... apses more leniently than applications relating to litigant's lapses. The classic example is the difference in approach of courts to applications for condonation of delay in filing an appeal and applications for condonation of delay in "re-filing the appeal after rectification of defects. (v) Want of "diligence" or "inaction" can be attributed to an appellant only, when something required to be done by him, is not done. When nothing is required to be done, courts do not expect the appellant to be diligent. Where an appeal is admitted by the High Court and is not expected to be listed for final hearing for a few years, an appellant is not expected to visit the court or his lawyer every few weeks to ascertain the position nor keep check ..... X X X X Extracts X X X X X X X X Extracts X X X X
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