Commissioner (Appeals) rejects condonation of delay of one day - CESTAT Overrules
HERE is a very serious, strict and sincere Commissioner (Appeals) who refused to condone the delay of ONE DAY.
It is nowadays very difficult to find your jurisdictional Central Excise offices. The office of the Commissioner of Central Excise (Appeals) Mangalore was shifted to Mysore. In the confusion as to where the appeal has to be filed, Mysore or Bangalore, the appellant says he was delayed by a day. But the Commissioner will have nothing of this. His interesting observations:
1. I find that the appellant, although has made voluminous submissions has failed to file the same within the prescribed time.
2. He has also not filed any condonation of delay application at the time of filing the appeal.
3. The voluminous submissions of the appellant wherein he has dealt with various service tax issues in detail and skillfully interpreted the laws go on to prove that the appellant has access to good legal assistance regarding tax matters.
4. Thereby I am disinclined to suppose there was any sufficient cause preventing the appellant to file the appeal within time.
5. Further, I find that the appellant has only filed a condonation of delay (COD) application only on 17.01.2014 during the personal hearing i.e. after a lapse of nearly seven and half months which is irregular.
6. Even in the COD application, the appellant has failed to provide a valid reason for the delay in filing the appeal. His contention of being confused regarding the filing of the appeal due to shifting of the Commissioner (Appeals)'s office from Mangalore to Mysore is baseless, in this regard. His claim is far-fetched and not reasonable in the given circumstances as I find that the appellant has rightly addressed the letter to the Mysore address which thereby shows that there was no confusion regarding the shifting of the office.
7. They have also cited that sending the documents by speed post caused the delay. Such an argument is immaterial to the issue.
8. The criteria for determining if an appeal is belatedly filed or not is the date of receipt of the appeal in its proper format in this office and not the date of dispatch.
9. Further his pleas of not having any ‘intentional negligence' too cannot come to his rescue as the issue involved is a factual one.
10. I thereby find no sufficient cause being made out preventing the appellant from filing the appeal in the prescribed time of two months.
11. As such, I find that the delay in filing the appeal does not merit any condonation and need to be rejected on this ground alone.
The assessee had to approach the Tribunal against this order. The Tribunal did not comment much on the learned Commissioner's order, but observed that the Commissioner (Appeals) should have condoned the delay. The Tribunal condoned the delay of one day and remanded the matter to the Commissioner (Appeals) for fresh decision on the appeal (not on condonation).
If the Supreme Court is as strict as the learned Commissioner (Appeals) is, not many cases of the Department will pass the threshold of the Apex Court. Even yesterday the Supreme Court condoned the delay in a Service Tax case and today a Central Excise case is listed for condonation of delay. When the case came up for hearing last time more than two years ago, the Counsel for the Central Excise Department was not present and the department had not served notice on one of the respondents.
And here is a Commissioner who does not condone a day's delay, which he is empowered to do.
What did the learned Commissioner achieve for the Department?. See the possible sequence of events.
1. He passed an order and at least five copies of the order must have been printed.
2. The assessee files an appeal to the Tribunal in quadruplicate - at least 6 paper books must have been printed.
3. The Tribunal fixes a hearing, listens to elaborate arguments, also from the poor AR, who is bound to defend the Commissioner's order; and passes an order.
4. Some 30 copies of this order are printed and circulated to various offices and persons.
5. The assessee has to again approach the learned Commissioner (Appeals) to decide the case, which he could have done in the very beginning itself.
And saved this country some paper and precious money and more importantly, the tribunal could have decided a more important issue. But this is not how Government runs.
Modiji, it is full government and no governance.