Growth Centre, Siltara, District Raipur, Chhattisgarh v. Commissioner, Central Excise & Customs, Central Excise Building, Dh
Case Details
Page 1 of 6 (Tax Case No.50/2018) SISTA SOMAYAJULU Digitally signed by SISTA SOMAYAJULU Date: 2025.03.18 16:49:40 +0530 2025:CGHC:12831-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR TAXC No. 50 of 2018 {Arising out of Final Order No.A/52637/2016-EX[DB] dated 27-7-2016 passed by the Customs, Excise & Service Tax Appellate Tribunal, Principal Bench, New Delhi, in Excise Appeal No.E/1036/2008-EX [DB]} Order reserved on: 5-3-2025 Order delivered on: 18-3- 2025
Legal Reasoning
M/s. Vandana Global Limited, Through its Authorized Signatory Shri Sanjay Sharma, Age 52 years, S/o Shri Bhagirath Singh, Having its Office at Phase II, Siltara Industrial Growth Centre, Siltara, District Raipur, Chhattisgarh ... Appellant versus Commissioner, Central Excise & Customs, Central Excise Building, Dhamtari Road, Tikrapara, Raipur, Chhattisgarh – 492001 ... Respondent For Appellant : Mr. Saurabh Suman Sinha, Advocate appeared through Video Conferencing and Mr. Akash Shrivastava, Advocate. For Respondent : Mr. Maneesh Sharma, Advocate. Division Bench: - Hon'ble Shri Sanjay K. Agrawal and Hon'ble Shri Sanjay Kumar Jaiswal, JJ. C.A.V. Order Sanjay K. Agrawal, J. 1. This order will govern the disposal of I.A.No.1/2018, application for condonation of delay in filing the appeal. Page 2 of 6 (Tax Case No.50/2018) 2. The Customs, Excise & Service Tax Appellate Tribunal (CESTAT), Principal Bench, New Delhi had passed the order in question on 27- 7-2016. Feeling aggrieved against the said order, the appellant herein has preferred appeal on 23-6-2018, whereas the appeal was required to be preferred in terms of Section 35G of the Central Excise Act, 1944 (for short, ‘the Act of 1944’) within 180 days from the date on which the order appealed against is received by the appellant herein. However, the appeal was filed with a delay of 546 days. Sufficient cause which is sought to be shown by the appellant is that the issue which is involved in this present appeal was decided by the larger Bench of the CESTAT against which Tax Case No.59/2011 (M/s Vandana Global Limited v. Commissioner, Central Excise and Customs and another) was pending before this Court and which ultimately came to be decided on 13-9-2017 and thereafter, the appeal is preferred within the period of limitation on 23-6-2018, as the delay occurred in filing the appeal is, pendency of Tax Case No.59/2011 and once the judgment was delivered, the present appeal has been filed. 3. Reply has been filed by the respondent / Revenue stating that the merit of the case is not to be considered while the application for condonation of delay is being considered and the application for condonation has to be considered independent to the merit of the case. As such, no sufficient cause has been shown for delay in filing the appeal. Page 3 of 6 (Tax Case No.50/2018) 4. Mr. Saurabh Suman Sinha, learned counsel for the appellant appearing through Video Conferencing, would submit that since identical issue remained pending before this Court in Tax Case No.59/2011 which was ultimately decided on 13-9-2017, the appellant has taken decision to prefer appeal which was preferred on 23-6-2018 and therefore delay in filing the appeal be condoned, as, thereby, sufficient cause has been shown for delay in filing the appeal. 5. Mr. Maneesh Sharma, learned counsel appearing for the respondent / Revenue, would submit that while deciding the application for condonation of delay, merits of the appeal cannot be looked into and subsequent change in law would not be a valid ground for seeking condonation of delay. He would rely upon the decision of the Supreme Court in the matter of Delhi Development Authority v. Tejpal and others1 in which it has been held that subsequent change in law cannot be a ground for seeking condonation of delay. 6. We have heard learned counsel for the parties and considered their rival submissions made herein-above and also went through the record with utmost circumspection. 7. It is not in dispute that the appellant’s appeal before the CESTAT was dismissed on merits on 27-7-2016 and it is also not in dispute that appeal under Section 35G of the Act of 1944 was preferred by the appellant only on 23-6-2018, whereas the appeal has to be preferred 1 (2024) 7 SCC 433 Page 4 of 6 (Tax Case No.50/2018) within 180 days from the date of communication of the order to the aggrieved party. As such, it is filed with an inordinate delay in filing the appeal i.e. 546 days and the reason assigned in the application is only and only that Tax Case No.59/2011 was pending before this Court in which the question of law involved in this appeal is also required to be adjudicated and once it has been adjudicated by this Court in Tax Case No.59/2011 on 13-9-2017, the appeal came to be filed. 8. In this regard, the legal position pertaining to the question whether while considering the plea for condonation of delay, the Court can look into the merits of the matter, is well settled and recently it has been held so by their Lordships of the Supreme Court in the matter of H. Guruswamy and others v. A. Krishnaiah since deceased by LRs 2 in which it has been held that while considering the plea for condonation of delay, the court must not start with the merits of the main matter, and observed as under: - “16. … While considering the plea for condonation of delay, the court must not start with the merits of the main matter. The court owes a duty to first ascertain the bona fides of the explanation offered by the party seeking condonation. It is only if the sufficient cause assigned by the litigant and the opposition of the other side is equally balanced that the court may bring into aid the merits of the matter for the purpose of condoning the delay.” 9. Similarly, in Delhi Development Authority (supra), the Supreme Court has held that if subsequent change of law is allowed as a valid 2 2025 INSC 53 Page 5 of 6 (Tax Case No.50/2018) ground for condonation of delay, it would open a Pandora’s box, and observed as under: - “42. Thirdly, if subsequent change of law is allowed as a valid ground for condonation of delay, it would open a Pandora's box where all the cases that were subsequently overruled, or the cases that had relied on the judgments that were subsequently overruled, would approach this Court and would seek a relief based on the new interpretation of law. There would be no finality to the proceedings and every time this Court would reach a different conclusion from its previous case, all such cases and the cases relying on it would be reopened.” 10. Coming to the facts of the case, it is quite vivid that in the instant case, the order was passed way back on 27-7-2016 and this Court decided the issue on 13-9-2017 in Tax Case No.59/2011, thereafter, the appellant did not take steps to file appeal immediately after pronouncement of judgment in Tax Case No.59/2011 on 13-9-2017, as the appellant took more than nine months and preferred appeal under Section 35G of the Act of 1944 on 23-6-2018, whereas it is required to be filed within 180 days from the date of communication of the order to the aggrieved party. As such, the appellant was required to prefer appeal immediately after the impugned order dated 27-7-2016 was communicated to him. Even after the judgment in Tax Case No.59/2011 was passed on 13-9-2017, he took more than nine months’ time to file appeal. Therefore, in our considered opinion, no cause much less sufficient cause has been shown for delay in filing the appeal. Even otherwise, merits of the matter cannot be looked into while deciding the application for Page 6 of 6 (Tax Case No.50/2018) condonation of delay as held in H. Guruswamy (supra) by their Lordships of the Supreme Court and subsequent change in law would not be a valid ground to condone the delay as held by the Supreme Court in Delhi Development Authority (supra).
Decision
11. For the foregoing reasons, we are unable to hold that the appellant has shown sufficient cause for condoning the delay of 546 days in filing the appeal and consequently, the application for condonation of delay in filing the appeal (I.A.No.1/2018) deserves to be and is accordingly rejected. Consequently, the present tax case (Tax Case No.50/2018) stands dismissed leaving the parties to bear their own cost(s). Sd/- (Sanjay K. Agrawal) JUDGE Soma Sd/- (Sanjay Kumar Jaiswal) JUDGE