TMI Blog2014 (8) TMI 482X X X X Extracts X X X X X X X X Extracts X X X X ..... ive appellants have failed to make out a sufficient ground to condone the huge delay of 541 days. It appears that the respective appellants were totally negligent. Under the circumstances, the learned Tribunal has rightly refused to condone the huge delay of 541 days in preferring the appeals - Condonation denied. - Tax Appeal No.540 of 2014, Tax Appeal No.547 of 2014, Civil Application No.332 of 2014, Civil Application No. 339 of 2014 - - - Dated:- 8-8-2014 - M. R. Shah And K. J. Thaker,JJ. For the Appellant : Mr. Kunal Nanavati ORDER (Per : Honourable Mr. Justice M. R. Shah) 1. Feeling aggrieved and dissatisfied with the impugned common judgment and order passed by the learned Customs, Excise and Service Tax Appellate Tribunal, West Zonal Bench, Ahmedabad [hereinafter referred to as Tribunal ] by which the learned Tribunal has refused to condone the huge delay of 541 days in preferring the respective appeals against the orders passed by the learned Commissioner (Appeals), the respective appellants have preferred the present tax appeals with the following proposed questions of law. a) Whether the Hon ble CESTAT erred in dismissing the Appellant's appl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oner (Appeals), the respective appellants preferred appeals before the learned Tribunal. There was a delay of 541 days in preferring the respective appeals before the learned Tribunal and therefore, the respective appellants submitted the separate applications requesting to condone the delay. That additional affidavits were filed to explain the delay. However, the learned Tribunal was not satisfied with the explanation submitted in support of the prayer to condone the delay and as such observed that the affidavits of other persons do not inspire any confidence, by impugned common judgment and order the learned Tribunal has refused to condone the delay of 541 days in preferring the respective appeals and has rejected the respective applications for condonation of delay and consequently the respective appeals as well as the applications. 2.3 Feeling aggrieved and dissatisfied with the impugned common order passed by the learned Tribunal in refusing to condone the delay of 541 days in preferring the respective appeals against the orders passed by the Commissioner (Appeals), respective appellants have preferred the present tax appeals with the aforesaid proposed questions of law. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rvice tax on merits and the same may be kept open to be considered in subsequent assessment orders. 4. Heard Shri Kunal Nanavati, learned advocate appearing on behalf of the respective appellants at length. We have gone through the impugned common order passed by the learned Tribunal refusing to condone the huge delay of 541 days. We have also gone through and considered the original application submitted by the appellants requesting to condone the delay as well as the subsequent further affidavits filed by the appellants and the affidavits of Shri Rakesh Thakor and Shri Parvez Parwala explaining the delay. 4.1 At the outset it is required to be noted that the learned Tribunal has considered in detail the application submitted by the appellants to condone the delay and the grounds set out in the said application as well as further affidavit of the appellants as well as affidavits of Shri Rakesh Thakor and Shri Parvez Parwala and thereafter has refused to condone the delay by observing in para 4 as under: 4. On careful consideration of the submissions made by both sides, we find that the condonation application of all the applicants are identical and it states that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that there are contradictory versions and the further affidavits of Shri Rakesh Thakor and Shri Parvez Parwala do not instill any confidence. It is required to be noted that when initially the appellants submitted the application for condonation of delay, the appellants stated as under: On 27.01.2012, I received the order of Commissioner (Appeal-IV), Central Excise, Ahmedabad in my case for the period 01.08.2007 to 30.09.2008. Being aggrieved by the said order, I requested my auditors M/s. Divyesh H. Shah Co., Chartered Accountants, to prefer an appeal to the Hon ble Appellate Tribunal and they undertook to do the needful soon. However, the appeal papers submitted to one staff member of the Chartered Accountant were mixed up with the other papers in his office and the appeal was left unfiled. Under the impression that the appeal was filed, and on my discussion with the Chartered Accountant regarding the status of appeal few days back, he searched for my file and informed me that the signed papers for filing appeal were mistakenly filed in some other client s file and the matter was thus forgotten completely. On becoming aware of this negligence committed by M/s. Divyesh H. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earned Tribunal has rightly refused to condone the huge delay of 541 days in preferring the appeals. At this stage the decisions of the Hon ble Supreme Court in the case of Post Master General and Ors. vs. Living Media India Limited and Anr. reported in (2012) 3 SCC 563 as well as in the case of Lanka Venkateswarlu (D) by L.Rs. vs. State of A.P. Ors. reported in AIR 2011 SC 1199 are required to be referred to. In the case of Living Media India Limited and Anr. (Supra), the Hon ble Supreme Court in absence of plausible and acceptable explanation, refused to condone the delay. Identical question came to be considered by the Hon ble Supreme Court in the case of Lanka Venkateswarlu (D) by L.Rs Vs. State of A.P. Ors. reported in AIR 2011 SC 1199. In the said decision, Hon ble Supreme Court considered the earlier decision in the case of M. Balakrishnan (Supra), which has been relied upon by the learned Assistant Government Pleaders. While considering the question of condonation of delay under Section 5 of the Limitation Act in filing the appeal and considering the earlier various decisions of the Hon ble Supreme Court it is held and observed by the Hon ble Supreme Court that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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