High Court of Jammu And Kashmir
Case Details
1 HIGH COURT OF JAMMU AND KASHMIR AT JAMMU EXAP no. 01/2011 CMA no. 01/2011 Commissioner of Custom and Central Excise v M/s EMCO Wires Date of order: 12.11.2013 Coram: Hon’ble Mr. Justice M. M. Kumar, Chief Justice Hon’ble Mr. Justice Hasnain Massodi, Judge Appearing counsel: For the appellant(s) : For the respondent(s) :
Legal Reasoning
In our view, once the Tribunal has allowed filing of application seeking condonation of delay, then the proper course could have been to permit filing of proper 6 affidavit as well. It is true that the Revenue has adopted a casual approach in approaching the Tribunal but at the same time when the issue could be decided on merit involving revenue then the cost could have been considered sufficient penalty for grant of permission to rectify the procedural lapse. 8. In view of the above, this appeal succeeds. The judgment of the Tribunal is set aside. However, the Revenue is burdened with costs of Rs. 10,000/- which shall be paid to the assessee before taking up the proceedings before the Tribunal. The revenue shall file proper affidavit as per the requirement of law. The importance of a proper affidavit has been considered by Hon’ble the Supreme Court. In that regard reliance be placed on para 9 of the judgment of Hon’ble the Supreme Court rendered in case of A. K. K. Nambiar v. Union of India and Anr. AIR 1970 SC 652. The needful shall be done within a period of six weeks. 9. The appeal stands disposed of in the above terms. (Hasnain Massodi) (M. M. Kumar) Judge Chief Justice Jammu, 12.11.2013 Vijay
Arguments
Mr. V. K. Magoo, Advocate. Mr. M. P. Gupta, Advocate. 1) 2) Whether approved for reporting in Press/Media Whether to be reported in Digest/Journal : : Yes/No Yes/No M. M. Kumar 1. The instant appeal by the revenue under Section 35 G of the Central Excise Act, 1944 is directed against the order dated 10.05.2010 challenging final order passed by the Customs, Excise and Service Tax Appellate Tribunal (for brevity the CESTAT). The Tribunal has non-suited the Revenue by dismissing the application seeking condonaton of delay in filing the appeal before the CESTAT. 2. Brief facts of the case are that the assessee- respondents are engaged in manufacture of Distributing Transformers falling under Sub-heading No. 85041010 of the first schedule to the Central Excise Tariff Act, 1985. They are also engaged in the repairing activities of old Transformers and are paying Central Excise Duty on 2 HV/LV Coils manufactured and captively consumed in repaired Transformers. They filed a refund claim on Central Excise Duty for certain months of the year 2005 and 2006 under Notification No. 56/2002-CE dated 14.11.2002. The claim for refunding was accepted partially. 3. Feeling aggrieved, the assessee challenged the order in appeal against the order-in-original before the Commissioner (Appeals) Central Excise Jalandhar (HQ at Chandigarh). The appeal was decided on 07.01.2008. The claim made by the revenue is that the assessee sent a copy of the order in appeal on 06.05.2008 to the Deputy Commissioner, Central Excise Division, Jammu but the Department did not receive the certified copy of the order up to 18.08.2008. 4. The revenue preferred an appeal before the CESTAT by taking into account the date of certified copy i.e 18.08.2008 claiming that the appeal was filed within the period of limitation of 90 days provided by Section 35(B)(3) of the Act. However, objection was raised that the period of limitation has to be reckoned from 06.05.2008 when photocopy of the order was supplied. Consequently an application seeking condonation of delay was filed, which was not supported by an affidavit. 3 On the oral request made COD no.66/09 was permitted to be withdrawn with liberty to file proper application supplied with an affidavit. Thereafter, Excise COD Application no. 12/2010 was filed which was again not supported by any affidavit. The CESTAT on 05.03.2010 granted time to file proper affidavit. Thereafter affidavit was filed and the same was found deficient in terms of the provision of Order XIX of the Code of Civil Procedure. The CESTAT held that the affidavit did not have any verification and in terms of order XIX of the CPC the object of filing affidavit is that the deponent verifies the facts on the basis of knowledge derived from the record or personal knowledge of the deponent. Thus the deponent was required to disclose the source of information. Accordingly, it was held that the affidavit filed in support of the application seeking condonation of delay did not satisfy the requirement of a proper affidavit. The view of the Tribunal is discernable from para nos. 13, 14, 15 and 16, which are extracted below: “13. Condonation of delay is not a matter of right, it is a matter of discretion to be exercised by the authority before whom the parties are required to approach within the prescribed time and falling which are required to justify the delay with sufficient cause. Obviously, therefore, the discretion has to be exercised judiciously. For that purpose, the records must disclosed sufficient cause for condonation of delay. When the records apparently reveal that the party approaching beyond the period of limitation had sufficient knowledge of the contents of the order which was necessary to frame the grounds of challenge to the order, it 4 can hardly be said that the party had disclosed sufficient cause for delay, more particularly in relation to the period from the date of knowledge of such contents of the order. 14. As rightly pointed out by the learned advocate for the respondents, the concerned officer who is fully aware of the contents of the order passed on 7th January 2008 released on 18th July 2008, and therefore, it cannot be said that he could be waiting for the copy till 18th August 2008 to take necessary steps in terms of Section 35E of the said Act. The contention about non-availability of the official copy also does not appeal to our mind. Firstly, there is no provision of law disclosed which would enable the concerned officer to wait for the official copy of the order. Secondly, the concerned officer being in possession of the copy of the order furnished by the assessee, he could have very well ascertained and verified as to whether the same is a true copy of the original order or not. Besides, having come to know about the order, efforts could have been made to obtain the official copy urgently. Nothing is disclosed as to what prevented the officer from taking steps in those regards. 15. It is pertinent to note that the claim involved in the matter is sum of Rs. 2,06,724/-. It is not to say that merely because an amount involved is not a huge amount for the department that we consider the matter differently. The records disclose total absence of due diligence on the part of the department persons to take appropriate steps in time. The law of limitation is same for the private parties as well as for the Government. We are aware that in Government offices, many a times, on account of carefree attitude on the part of the Government officers, which is commonly known as “whose what’s go?”, the matters get delayed. Apart from carefree attitude, there could be various other reasons for the same also. However, when it comes to condonation of delay, the reasons should be justifiable reasons and shall be in relation to the sufficient cause for condonation of delay, and not otherwise. 16. In the case in hand, we do not find any sufficient cause having been made out for the delay in filing the appeal. What is surprising is that, the department does not want to admit that there is a delay and yet, expects the Tribunal In such circumstances, the department cannot expect any sort of indulgence from the Tribunal.” to condone the delay if any. 5. We have heard learned counsel for the parties at a considerable length and are of the view that the law concerning condonation of delay is liberal. The Revenue has filed Excise COD Application no. 12/2010 with prayer for condoning the delay beyond the period of three months from the date on which order sought to be 5 appealed was communicated to the Commissioner, Central Excise. It is true that the Revenue had initially displayed lack of knowledge by claiming that the appeal filed on 17.11.2008 was within the period of limitation as contemplated by Section 35(B)(3) of the Act. Accordingly, Excise COD Application no. 12/2010 was filed which was found defective and was permitted to be withdrawn. 6. Thereafter another application registered as COD no. 12/2010 was filed which was unfortunately without any proper affidavit. The Tribunal this time preferred to adopt a strict approach and dismissed the application seeking condonation of delay. The basic reason for rejecting the application is that the affidavit in support of the application was defective in terms of order XIX of the CPC. The deponent failed to support the averments by verifying the facts on the basis of knowledge derived from the record or otherwise. The Tribunal also took the view that sufficient cause for delay was required to be shown. The Tribunal disapproved the approach of the Revenue in not admitting that there was delay. 7.