TMI Blog2008 (9) TMI 35X X X X Extracts X X X X X X X X Extracts X X X X ..... Six Lakh Twenty Nine Thousand Nine Hundred and Seventy Two only), Rs. 4,16,724/- (Rupees Four Lakh Sixteen Thousand Seven Hundred and Twenty Four only) and Rs. 8,37,738/-(Rupees Eight Lakh Thirty Seven Thousand Seven Hundred and Thirty Eight only) aggregating Rs. 25,78,005/- (Rupees Twenty Five Lakh Seventy Eight Thousand and Five only) and all such claims were held to be untenable by four letters issued by the learned Asst. Commissioner, Rourkela-II bearing Nos. (1)V(10)10 /Rebate/RKL-II/2005 /942 dt. 17-3-06, (2) IV(10)12/Rebate/RKL- II/2005/940 dated 17-3-06, (3) IV(10)11/Rebate/RKL-II/2005/941 dated 7-3-06 and (4) IV(10)9 /Rebate /RKL-II/2005 /943 dated 17-3-2006. 2. Appeal case No. 512/07 was filed by Revenue against order dated 27-2-2007 passed by the learned Commissioner (Appeals) entitling the Respondent to the refund of duty holding the claim tenable under the law while Authority below denied rebate claim of Rs. 25,97,680/-(Rupees Twenty Five Lakhs Ninty Seven Thousand Six Hundred and Eighty only) to the Respondent by order dated 31-5-2006. 3. Both the Appeals aforesaid were filed by Revenue on 6-9-2007. Appeal Memo in the case of Appeal No. 511/07 and Appeal No. 5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 26-3-2008, it was noticed from the delay Condonation Applications that delay was attributed to the belated constitution of the Committee by the C.B.E. C. Also such applications were filed 9(nine) months after filing of appeals. These applications did not state whether the delay so attributed was for "sufficient cause" calling for exercise of jurisdiction by Tribunal under Section 35B(5) of the Act. Revenue was accordingly directed to file an affidavit explaining why there was delay in constituting the Committee as required by Section 35(2) of the Act and the matter was adjourned to 16-5-2008. On that day when no affidavit came out from Revenue's side, a speaking order was passed directing C.B.E. C. to file appropriate affidavit before the next date of hearing fixed to 8-7-2008 explaining reason of delay in constituting the Committee for review of the impugned order u/s 35B(2) of the Act. However when the matter was called on 8-7-2008 there was no affidavit filed by the Board for which the matter was again adjourned to 28-7-2008. Finally the matter came to board on 19-8-2008 and on that day learned Representative for Revenue filed affidavits in both the cases. 8. Various eve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 13-3-2007 Order Appealed was received by Office CCE, Bhubaneswar-II. (Para-2 of Affidavit) 16-3-2007 Board decided to give additional charge of Bhubaneswar-I to CCE Ranchi. (Para-5 of Affidavit) Board decided to give additional charge of Bhubaneswar I to CCE, Ranchi. (Para-3 of Affidavit) 20-3-2007 Office Order No. 87/2007 dated 20-3-2007 was issued giving additional charge to CCE, Ranchi for Review purpose. (Para-5 of Affidavit) Office Order No. 87/2007 dated 20-3-2007 was issued giving additional charge to CCE, Ranchi for Review purpose. (Para-3 of Affidavit). 9-5-2007 Govt. posted a regular Commissioner to Bhubaneswar-I Commissionerate while Bhubaneswar-II Commissioner was transferred and Commissioner of Bhubaneswar-I held additional charge of Bhubaneswar-II Commissionerate. [Para of Affidavit] Govt. posted a regular Commissioner to Bhubaneswar-I Commissionerate while Bhubaneswar-II Commissioner was transferred and Commissioner of Bhubaneswar-I held additional charge of Bhubaneswar-II Commissionerate. [Para … of Affidavit] 13-6-2007 Such fact established conscious Knowledge o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (A) That the Appellant Revenue when preferred to file careless and baseless applications for condonation of delay, without stating even the number of days of delay in filing the Appeal, such callousness is not entertainable for their abuse of process of law. They had scanty regard to the statutory limitation prescribed by Section 35B(3) of the Act. (B) When the Department filed 38 Appeals before Tribunal between April 2006 till July 2007 as per details furnished by him in Page 4 and 5 of his written memo, the reason why these two appeals which were due to be filed on 31-8-2006 and 12-6-2007 respectively were not filed was best known to them. Therefore Revenue's averments on delay Condonation Applications as well as affidavits are totally baseless. He argued that legislature did not prescribe limitation loosely. Time barred Appeals should not receive consideration on mere blame of Commissionerate to C.B.E. C. for failing to constitute committee. Lack of Communication between different wings of C.B.E. C. itself proves their disregard to law establishing no "sufficient cause" existed to condone delay following the decision of Hon'ble Supreme Court in the case of Union of In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... function and not an administrative function following decisions in the cases of Commissioner of Income Tax, Bhopal v. Ralson Industries Ltd 2007 (214) E.L.T. 166 (S.C.) = 2007 (7) S.T.R. 497 (S.C.), CCE, Chandigarh v. APSCO Prefabs Pvt. Ltd. - 2007 (78) RLT 247 (CESTAT-Del.), and Commissioner of Customs, Tuticorin v. Madura Coats Pvt. Ltd. - 2007 (216) E.L.T. 86 (Tri.-Chennai). Added to the above, he argued that there cannot be two parallel orders by review by two different Authorities viz., one by the learned Commissioner, Bhubaneswar-II and the other by the so called Committee constituted belatedly. Also when right of appeal was not exercised duly, other side cannot be put to adverse after limitation. (G) Power conferred under Section 35B(5) of the Act on the Tribunal is to look into whether there existed "sufficient cause" before limitation which is a pre-condition for exercise of jurisdiction. Delay can be condoned if there is sufficient cause existing before limitation but not subsequent to limitation prescribed. It was all along within the knowledge of C.B.E. C. that there was a vaccum and no committee existed. Therefore lateral act of constitution of Committe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld be definite and proper explanation on record before the Court to condone the delay in filing an appeal. Condonation of delay can not be claimed as a matter of right and such discretion should not be exercised by the Court or the authorities in a mechanical manner. Legislative intent behind prescribing the period of limitation normally is to create a bar in institution of the proceedings upon expiry of the period except for the exceptions specifically provided in that provision itself. Delay cannot be condoned as a matter of right or on the mere asking of the party. It is expected of the Court to exercise such discretion as per settled guidelines and is inevitable for a party to show a sufficient cause while requesting the Court to exercise such discretion in favour of the Applicant. In the case of Shanti Devi v. State of Haryana and Ors., 1999 (5) S.C.C. 703, the Supreme Court held that delay should be explained properly and sufficient cause should be shown before the court can condone the delay. Further, in the case of K. Aya Thayalnayagiammal v. T.V. Thomas , JT 2000 (7) S.C. 384, the Supreme Court further held that the order of the Supreme Court in condoning the delay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... India v. Upper Ganges Sugar and Industries Ltd. - 2005 (179) E.L.T. 277. 16. Hon'ble Supreme Court in the case of Ajitsingh Thakursingh and Another v. State of Gujarat - 1981 AIR (SC) 733 held that a party is entitled to wait until the last day of the limitation to expire for filing an appeal. But when it allows limitation to expire and pleads sufficient cause for not filing appeal earlier, the sufficient cause must establish that because of some event or circumstances, arising before limitation it were not possible to file the appeal within time. No event or circumstances arising after the expiry of limitation can constitute such sufficient cause. There may be events or circumstances subsequent to the expiry of limitation which may further delay in filing of appeal. But that limitation has been allowed to expire without the appeal being filed must be traced to a cause arising within the period of limitation. Initial appreciation by the learned Commissioner, Bhubaneswar-II facilitated grant of refund. That itself is sufficient enough to observe that there appeared to have no cause for filing of Appeal against the order appealed. Subsequent events do not provide any basis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lay in filing the appeal (emphasis supplied)." 19. It would also be appropriate to extract Para 9 of the judgment of Hon'ble High Court of Punjab Haryana in the case of Commissioner of Central Excise, Delhi-IV v. Escorts Ltd. - 2008 (228) E.L.T. 345 (P H) for convenience of reading : "9. Since we have come across a large number of cases, involving substantial revenues, which have not been pursued with diligence, a copy of this order be sent to the Central Board of Excise and Customs for taking necessary corrective steps to safeguard the public revenue (emphasis supplied)". 20. Hon'ble Supreme Court in the case of Union of India v. Upper Ganges Sugar industries Ltd. - 2005 (179) E.L.T. 277 (S.C.) had observed callousness and negligence on the part of Revenue Authorities. These two appeals like so many others on our Board for the last few months also indicate negligent and callous manner in which Revenue is dealing with litigation. Matter after matter we have noticed failure of Revenue to fulfill statutory requirement of filing of Appeal duly or explaining sufficient cause in case of delay. Even with the stakes being so high there is apparent callousness a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re both the Appeals are also dismissed. Both the Cross Objections stand disposed of. 25. [Consent Order per : Chittaranjan Satapathy, Member (T)]. - I entirely agree with the above order recorded by Hon'ble Judicial Member for rejecting the Miscellaneous Applications for Condonation of Delay and consequently the Stay Petitions and the Appeals for the detailed reasons recorded by him. 26. In a recent decision of the Hon'ble Bombay High Court in the case of Ornate Traders Private Limited Others v. The Income Tax Officer Others - 2008-TIOL-433-HC-MUM-1T, in Paragraph 31, it has been observed by the Hon'ble High Court that "Where there is unreasonable and unexplained delay on the part of the authorities concerned in instituting the Appeals within the period of limitation it is detrimental to the public revenue, it is also opposed to public policy and good governance of the Department. Furthermore, the case where the law is in favour of the Department or where departmental appeal makes out a good case as understood in common parlance, because of inordinate and unexplained delay, if it is dismissed as barred by time as Courts decline to hear the matters on merits, it wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authority called the "Placement Committee" under the Transfer Policy and the said Policy also requires all postings to be approved by the Minister as deposed by the Government in Bhusan Ltd. (cited supra). As such, the Transfer Policy is in direct conflict with the statutory provisions which requires the Board to do the appointments independently. 27. The Ministers can definitely lay down policy guidelines for good governance to be implemented by the Board, but approving each and every transfer certainly takes away the power and responsibility of the Board to make appointments independently under the relevant tax statutes. Moreover, the policy has so many varied criteria in terms of years spent in various cities and areas which have little nexus with the requirement of continuity and efficient tax administration and development of expertise in specialized fields of customs and excise. For example, we find the Transfer Policy for Customs and Excise officials categorizes the state of Andhra Pradesh in the East Zone, but places the same state under South Zone for transfer and postings of Income Tax Officials under the same Revenue Department. The policy has conflicting criteria w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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