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TMI Blog2016 (6) TMI 1034X X X X Extracts X X X X X X X X Extracts X X X X ..... nt, vide Show Cause Notice No.122/09, dated 03.04.2009 and No.23/2009, dated 28.07.2009 respectively, under Rule 14 of the CENVAT Credit Rules, 2004, r/w. Section 73(1) of the Finance Act, 1994. He also demanded interest, applicable at the rate payable on the above mentioned demands, under Rule 14 of the CENVAT Credit Rules, 2004, r/w. Section 75 of the Finance Act, 1994. In the same order, he also imposed penalty of Rs. 14,78,092/-, under Rule 15(4) of the CENVAT Credit Rules, 2004, r/w. Section 78 of the Finance Act, 1994. However, penalty was restricted to 25% of the said amount, if the tax dues along with applicable interest determined is paid along with the reduced penalty, within 30 days from the date of receipt of the order, in terms of proviso to Section 78 of the Finance Act. 3. Being aggrieved by the same, the appellant filed an appeal under Section 85 of the Finance Act, to the Commissioner of Service Tax (Appeals)-I, Chennai, 1st respondent herein, with a delay of 223 days in filing the appeal. The reason for the delay is that the person, dealing with service tax matters, in their organisation, had left the service, leaving the relevant papers in disarray. Upon perusal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 08.01.2016. 6. After considering the decisions in Kranti Associates Pvt. Ltd., v. Masood Ahmed Khan reported in 2011 (273) ELT 345 and Collector, Land Acquisition, Anantnag and another v. Mst.Katiji and others reported in 1987 (28) ELT 185 (SC) and Albert v. Commissioner of Service Tax, Chennai reported in 2015 (37) STR 187 (Mad.) and on the facts and circumstances of the case, by observing that there is no error or illegality in the order passed by the Commissioner (Appeals), dated 01.12.2014, writ Court, vide order, dated 22.02.2016, dismissed the writ petition. Being aggrieved by the same, the instant appeal has been filed. 7. The main contentions of the appellant are that when the order passed by the Additional Commissioner of Service Tax, Chennai, 2nd respondent herein, is against the principles of natural justice and goes to the root of of the matter, denying fair opportunity, the Writ Court ought to have directed the 1st respondent herein to decide the case, on merits. 8. According to Mr.K.Senguttuvan, learned counsel for the appellant, when the Commissioner of Service Tax (Appeals)-I, Chennai, does not enjoy the power to condone the delay, beyond the statutory period, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by lodging an appeal late. 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is con- doned the highest that can happen is that a cause would be decided on merits after hearing the parties. 3. "Every day's delay must be explained" does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational common sense pragmatic manner. 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay. 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk. 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Limitation Act and on the facts and circumstances of the case, the Hon'ble Supreme Court, at Paragraph 2, held as follows: "It is well settled that while considering an application for condonation of delay under Section 5 of the Limitation Act, 1963, the Court should not take too strict and pedantic stand which will cause injustice but to consider it from the point of view which will advance the cause of justice. In the instant case, the appellants are agriculturists living in villages and the applicant is also a very young person having little knowledge about the steps that are to be taken. Moreover, he has clearly stated that he came to know of the pendency of the appeal filed by his father as one of the appellants only recently on 4th August, 1972 and the application was made on August 5, 1972. Considering all these facts and circumstances, it is felt that for the ends of justice and fair play, the application under Section 5 of the Limitation Act should be allowed as sufficient cause has been made out for the condonation of delay in filing the application for bringing on record the legal representative of the deceased." Judgement in Bhag Singh's case (cited ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Limiation Act, is applicable even in the case where there is a time limit prescribed in the Special Act. Decision in Jai Hind Bottling Company's case (cited supra), has been decided on 07.08.2002, by a learned single Judge of the Allahabad High Court, after considering the decisions in Collector, Land Acquisition, Anantnag and another v. Mst.Katiji and others reported in 1987 (28) ELT 185 (SC), Eureka Forbes Ltd., v. Union of India [1998 (98) ELT 591 (All.)] and ITC Ltd., v. Union of India [1998 (101) ELT 9 (SC)]. In Eureka Forbes Ltd.,'s case (cited supra). It is the view of the Allahabad High Court that Sections 5 and 29(2) of the Limitation Act, have been excluded expressly by the provision of the Central Excise Act and so saying, the Court held that the Commissioner (Appeals) has not properly exercised the jurisdiction, in accordance with law. Decision in Eureka Forbes Ltd.,'s case (cited supra), cannot be applied at this juncture, in the light of the subsequent pronouncements of the Hon'ble Apex Court, which are dealt with, in the later paragraphs of this judgment. ITC's case (cited supra), is on alternative remedy. 15. In Indian Coffee Worker's ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... within the period prescribed under the Act, it cannot direct the appellate authority to consider the matter on merits as the High Court exercising jurisdiction under Article 226 of Constitution of India, cannot re-write the provisions of the Act." It is worthwhile to extract the reported judgments considered in Indian Coffee Worker's Co-op. Society Ltd.,'s case (cited supra), as follows: "In Mohd. Ashfaq v. State Transport Appellate Tribunal, U.P., [AIR 1976 SC 2161], the Supreme Court was considering Section 58 of the Motor Vehicles Act. The Supreme Court has ruled as under:- "Section 58 of the said Act provided that a permit may be renewed on an application made for such purposes, provided that the application for renewal of a permit shall be made (a) in the case of stage carriage permit or public carrier's permit, not less than 120 days before the date of expiry; and (b) in any other case not less than 60 days before the date of its expiry. Sub-section (3) of that Section further provided that: " Notwithstanding anything contained in the first proviso to subsection(2), the Regional Transport Authority may entertain an application for the renewal of a perm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on in subsection (3) that delay in making an application for renewal shall be condonable only if it is of not more than 15 days and that expressly excludes the applicability of Section 5 in cases where an application for renewal is delayed by more than 15 days. " 11. It has to be noted that even though in the provisions of the Act (Section 58 of the Motor Vehicles Act of Uttar Pradesh), the wordings "condonable only if it is of not more than 15 days" are not there, the Supreme Court so held on the basis of the wordings employed in the provisions of the Act, which read thus:- "may entertain an application for the renewal of a permit after the last date specified in the said proviso for the making of such an application, if the application is made not more than 15 days after the said last date." 12. The next decision is the one reported in K.Ganesh v. State of Tamil Nadu [ 1988 STC (VOL.68) 84]. That was a case where a petition was filed to condone the delay of 211 days in filing the Tax Case Revisions against the order of the Sales Tax Appellate Tribunal, Coimbatore. The Revisions were filed under Section 38 of the Tamil Nadu General Sales Tax Act. According to Sub-section- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is satisfied that the dealer had sufficient cause for not preferring the appeal within the prescribed period of 30 days subject to the payment of the admitted tax due. Under the amended provision, the delay can only be condoned up to a further period of 30 days. " 14. In a recent Judgment, the Supreme Court of India, in Union of India v. M/s.Popular Construction Co., [2001 (4) CTC 213], considered Section 34 of Arbitration and Conciliation Act, 1996 and ruled that when the statue positively prescribes 90 days as time limit for the purpose of filing an application under Arbitration Act, that provision is to condone the delay for a further period of 30 days only and Section 5 of the Limitation Act does not apply in view of express exclusion and scheme of the Act and delay beyond a period of 30 days after expiry of the original period of limitation cannot be condoned. It will be useful to quote in verbatim, the exact wordings employed by the Supreme Court, which reads thus:- " As far the language of Section 34 of 1996 Act is concerned, the crucial words are " but not thereafter" used in the proviso to subsection(3). In our opinion, this phrase would amount to an express excl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n I.A.No.187 of 1999 in an unnumbered appeal, declining to condone the delay of 131 days in filing the appeal, considered the scope of Section 5 of the Limitation Act and after considering the expression, sufficient cause , explained in the decision in State of Haryana v. Chandra Mani reported in 1996 (3) SCC 132, held that the first appellate Court has shut out the opportunity of preferring the statutory appeal, by refusing to condone the delay. Marimuthu's case (cited supra), is not rendered, with reference to the provisions of Service Tax or any other special enactments. 18. In Indian Sulphacid Industries Ltd., v. Union of India reported in 2008 (227) ELT 194 (P & H), the appeal filed by the petitioners therein was dismissed by the Commissioner (Appeals), as time barred. A Writ Petition was filed. Referring to the decisions of the Hon'ble Supreme Court in Vidyacharan Shukla v. Khubchand Baghel reported in AIR 1964 SC 1099, Hukamdev Narain Yadav v. Lalit Narain Mishra reported in 1974 (2) SCC 133 and Union of India v. Popular Construction Co., reported in 2001 (8) SCC 470, a Hon'ble Division Bench of Punjab and Haryana High Court, set aside the order of rejection and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the explanation thereof is satisfactory. Once the court accepts the explanation as sufficient it is the result of positive exercise of discretion and normally the superior court should not disturb such finding, much less in reversional jurisdiction, unless the exercise of discretion was on whole untenable grounds or arbitrary or perverse. But it is a different matter when the first cut refuses to condone the dela. In such cases, the superior cut would be free to consider the cause shown for the delay afresh and it is open to such superior court to come to its own finding even untrammeled by the conclusion of the lower court. 10. The reason for such a different stance is thus: The primary function of a court is to adjudicate the dispute between the parties and to advance substantial justice. Time limit fixed for approaching the court in different situations in not because on the expiry of such time a bad cause would transform into a good cause. 11. Rule of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. the object of providing a legal remedy is to repair the damage ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... p by the appellant was found satisfactory to the trial court in the exercise of its discretion and the High Court went wrong in upsetting the finding, more so when the High Court was exercising reversional jurisdiction. Nonetheless, the respondent must be compensated particularly because the appellant has secured a sum of Rs. Fifty thousand from the delinquent advocate through the Consumer Disputes Riderless Forum. We, therefore, allow these appeals and set aside the impugned order by restoring the order passed by the trial court but on a condition that appellant shall pay a sum of Rupee Ten thousand to the respondent (or deposit it in this court within one month from this date. 15. The appeals are disposed of accordingly." Though in the above reported case, it is observed by the Hon'ble Apex Court that, the primary function of a court is to adjudicate the dispute between the parties and to advance substantial justice and the time limit fixed for approaching the court, in different situations in not because on the expiry of such time a bad cause would transform into a good cause. In N.Balakrishnan's case (cited supra), condonation of delay in filing an appeal to set as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ear 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." 21. In Commissioner of Customs & Central Excise v. Hongo India (P) Ltd., reported in 2009 (236) ELT 417 (SC), the Hon'ble Apex Court considered a question, as to whether, High Court has power to condone the delay in presentation of a reference application under the unamended Section 35H(1) of the Central Excise Act, 1944, beyond the prescribed period by applying Section 5 of the Limitation Act, 1963. After considering the decisions in Singh Enterprises v. CCE, Jamshedpur reported in 2008 (221) ELT 163 (SC), at Paragraphs 18 to 20, the Hon'ble Apex Court held as follows: "18) In the earlier part of our order, we have adverted to Chapter VIA of the Act which provides appeals and revisions to various authorities. Though the Parliament has specifically prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of 180 days has been provided with to enable the Commissioner and the other party to avail the same. We are of the view that the legislature provided sufficient time, namely, 180 days for filing reference to the High Court which is more than the period prescribed for an appeal and revision. 20) Though, an argument was raised based on Section 29 of the Limitation Act, even assuming that Section 29(2) would be attracted what we have to determine is whether the provisions of this section are expressly excluded in the case of reference to High Court. It was contended before us that the words "expressly excluded" would mean that there must be an express reference made in the special or local law to the specific provisions of the Limitation Act of which the operation is to be excluded. In this regard, we have to see the scheme of the special law here in this case is Central Excise Act. The nature of the remedy provided therein are such that the legislature intended it to be a complete Code by itself which alone should govern the several matters provided by it. If, on an examination of the relevant provisions, it is clear that the provisions of the Limitation Act are necessarily exclud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l v. Shantaram Baburao Patin and others [(2002) 253 ITR 799] and Bharat Auto Center v. Commissioner of Income-Tax and another [(2006) 282 ITR 366(Allabahad)] and by observing that a litigant does not stand to benefit by resorting to delay, but he runs a serious risk and Courts are not respected on account of its power to legalise injustice on technical grounds but because it is capable of removing injustice and is expected to do so, a Hon'ble Division Bench of this Court, set aside the order of the Income-Tax Tribunal and remitted the matter back to the Income-Tax Appellate Tribunal for fresh consideration on merits. 23. In Chhattisgarh State Electricity Board v. Central Electricity Regulatory Commission reported in 2010 (5) SCC 23, the question which arose before the Hon'ble Supreme Court, was whether, Section 5 of the Limitation Act, 1963, can be invoked by this Court, for allowing the aggrieved person to file an appeal, under Section 125 of the Electricity Act, 2003, after more than 120 days, from the date of communication of the decision of the order of the Appellate Tribunal for Electricity. In the reported case, the appellant challenged the order of the Central Regul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct, are extracted hereunder: "5. Extension of prescribed period in certain cases.- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908) , may be admitted after the prescribed period, if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period. Explanation.-- The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section. 29. Savings.- (1) Nothing in this Act shall affect Section 25 of the Indian Contract Act, 1872 (9 of 1872). (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l is 120 days. There is no provision in the Act under which this Court can entertain an appeal filed against the decision or order of the Tribunal after more than 120 days. 26. The object underlying establishment of a special adjudicatory forum i.e., the Tribunal to deal with the grievance of any person who may be aggrieved by an order of an adjudicating officer or by an appropriate commission with a provision for further appeal to this Court and prescription of special limitation for filing appeals under Sections 111 and 125 is to ensure that disputes emanating from the operation and implementation of different provisions of the Electricity Act are expeditiously decided by an expert body and no court, except this Court, may entertain challenge to the decision or order of the Tribunal. The exclusion of the jurisdiction of the civil courts (Section 145) qua an order made by an adjudicating officer is also a pointer in that direction. 27. It is thus evident that the Electricity Act is a special legislation within the meaning of Section 29(2) of the Limitation Act, which lays down that where any special or local law prescribes for any suit, appeal or application a period of limita ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s extraordinary powers under writ jurisdiction of Article 226 of the Constitution, may for valid reasons, to obviate extreme hardship or injustice, entertain a challenge even beyond the period of limitation prescribed. In the present case, however, we are not inclined to adopt such a course for the simple reason that the amount of service tax and penalty demanded is not very large. Further, in any case it is a question of payment of tax from one Central Government Department to another Central Government Department. Looking to the facts and circumstances of the case, we are not inclined to exercise extraordinary discretionary jurisdiction and, therefore, the petition is dismissed." 25. In Texcellence Overseas v. Union of India reported in 2013 (293) ELT 496 (Guj.), there was a delay of five months in filing the appeal. Commissioner (Appeals) declined to condone the delay. Relying on the judgment of the Apex Court in Singh Enterprises v. CCE, Jamshedpur reported in 2008 (221) ELT 163 (SC), the Tribunal confirmed the order of the Commissioner (Appeals). Contentions were made that the authorities have examined the issue, on merits. Seeking reversal of the orders, the petitioner there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ision in 2008 (221) E.L.T. 163 (S.C) [Singh Enterprises v. Commissioner of Central Excise, Jamshedpur] holding that a statutory authority is not vested with power to exercise any discretion beyond the period stipulated by law and that the appeal filed beyond the prescribed period of limitation is not maintainable as being barred by limitation. 17. It is well settled law that once the period of limitation has run itself out, the Appellate Authority does not have power to condone the delay in filing the appeal beyond the maximum period prescribed under the Act. Referring to Singh Enterprises case [2008 (221) E.L.T. 163 (S.C)], Tribunal has rightly dismissed the appeal. We do not find any infirmity in the order of the Tribunal and no substantial questions of law involved in this appeal and the appeal is dismissed." 27. In JCB India Ltd., v. Union of India reported in 2014 (301) ELT 209 (P & H), on the facts and circumstances of the case, a Hon'ble Division Bench of Punjab and Haryana High Court, at Paragraph 14, held as follows: "We are conscious of the prohibition enacted by Section 35F of the Act against condoning delay beyond 30 days, but proceed to consider whether the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as to whether, the Tribunal was right in rejecting the appeal filed by the appellant for condoning the delay. Based on the orders of the Tribunal in Trichy Institute of Management Studies (P) Ltd., v. Commissioner [2011 (22) STR 533], the Bench held as follows: "It is settled legal principle that the law of limitation has not been enacted with an intention to defeat the rights of the parties. If the appellant's guilty of deliberately not filing the appeals within time for certain mala fide reasons, that would be a different matter. However, from the facts, we have seen that there is no such deliberate or mala fide intention in preferring the appeal memorandums belatedly. Therefore, the Tribunal ought to have exercised discretion in the matter and condoned the delay." The said judgment has been rendered solely, on the basis of an order of the Tribunal, which has no binding force. Further, reading of the above reported judgment shows that the revenue has not raised any question, as to whether, the appellate authority or tribunal, as the case may be, has jurisdiction to condone the delay, beyond the extended period of delay. 32. In M/s.Kwang Jin India Auto Systems v. Commissi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns of the learned counsel appearing for the Commissioner of Service Tax that the period of limitation prescribed for hearing of the appeal, by the Appellate Tribunal, under Section 85(3) of the Finance Act, 1994, cannot be extended, and after referring to the decisions in Singh Enterprises v. Commissioner of Central Excise, Jamshedpur [2008 (221) E.L.T. 163 (SC)], JMJ Constructions v. Assistant Commissioner of Central Excise, Salem and others [(2012) 56 VST 256 (Mad.)], Earbis Engineering Co. Ltd., and another v. Deputy Commissioner of Sales Tax, Ballygunge Charge and another [(2012) 56 VST 258 (WBTT), Gopinath & Sharma v. CESTAT, Chennai [2013 (32) STR 172 (Mad.)] and Gopinath & Sharma v. CESTAT [2013 (32) STR J78(SC)], a Hon'ble Division Bench of this Court dismissed the Civil Miscellaneous Appeal. 35. Section 85 and 86 of the Finance Act, deal with appeals to the Commissioner of Central Excise (Appeals) and Appellate Tribunal respectively, are extracted hereunder: "84. (1) The Commissioner of Central Excise may, of his own motion, call for and examine the record of any proceedings in which an adjudicating authority subordinate to him has passed any decision or order under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r period of three months. (3A) An appeal shall be presented within two months from the date of receipt of the decision or order of such adjudicating authority, made on and after the Finance Bill, 2012 receives the assent of the President, relating to service tax, interest or penalty under this Chapter: Provided that the Commissioner of Central Excise (Appeals) may, 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."; (4) The Commissioner of Central Excise (Appeals) shall hear and determine the appeals and, subject to the provisions of this Chapter, pass such orders as he thinks fit and such orders may include an order enhancing the service tax, interest or penalty: Provided that an order enhancing the service tax, interest or penalty shall not be made unless the person affected thereby has been given a reasonable opportunity of showing cause against such enhancement. (5) Subject to the provisions of this Chapter, in hearing the appeals and making orders under this section, the Commissioner of Central Excise (Appeals) sha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -section, "jurisdictional Chief Commissioner" means the Chief Commissioner having jurisdiction over the concerned adjudicating authority in the matter. (3) "Every appeal under sub-section (2) or sub-section (2A) shall be filed within four months from the date on which the order sought to be appealed against is received by the Committee of Chief Commissioners or, as the case may be, the Committee of Commissioners."; (4) The Commissioner of Central Excise or any Central Excise Officer subordinate to him] or the assessee, as the case may be, on receipt of of a notice that an appeal against the order of the Commissioner of Central Excise or the Commissioner of Central Excise (Appeals) has been preferred under sub-section (1) or sub-section (2) or sub-section (2A)] by the other party may, notwithstanding that he may not have appealed against such order or any part thereof, within forty-five days of the receipt of the notice, file a memorandum of cross-objections, verified in the prescribed manner, against any part of the order of the Commissioner of Central Excise or the Commissioner of Central Excise (Appeals), and such memorandum shall be disposed of by the Appellate Tribunal as i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ises v. CCE, Jamshedpur reported in 2008 (221) ELT 163 (SC), Commissioner of Customs & Central Excise v. Hongo India (P) Ltd., reported in 2009 (236) ELT 417 (SC), Chhattisgarh State Electricity Board v. Central Electricity Regulatory Commission reported in 2010 (5) SCC 23, Section 5 of the Limitation Act cannot be applied, beyond the condonable period. 37. Section 85 of the Finance Act, is similar to Section 128 of the Customs Act, 1962; Section 34(3) of the Arbitration and Conciliation Act, 1996; Section 125 of the Electricity Act, 2003; Section 35-G of the Central Excise Act, 1944 and the statutes referred to above, are self contained Acts and codes by themselves. The High Court or the Supreme Court, as the case may be, cannot direct the appellate authority to condone the delay, beyond the extended period of limitation. Courts have also interpreted that when the legislative intent is reflected in the provisions of the special laws, excluding the provisions of Limitation Act, then the authorities under the statute, cannot exercise powers to condone the delay. On the aspect of the Court, exercising powers under Article 226 of the Constitution of India, to condone the delay, we ar ..... X X X X Extracts X X X X X X X X Extracts X X X X
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