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to amend Bill pending in Rajya Sabha Govt launches Sahaj, online release of new LPG connections Govt identifies 305 town for building houses for urban poor FM says best mind from legal profession should join judiciary; legal education needs huge manpower Cashless Payment: MoF seeks feedback from other Ministries on 30-Point suggestions to incentivise consumers Aviation Secretary reviews Action Plan to decongest Terminal 1D at IGIA (See 'Mixed Buzz') IRDA looking into proposal to digitalise all insurance policy documents Black Money Act - Addl CITs/JCITs to perform functions of AOs (See 'What's New') ACC goes for mega Secretary-level reshuffle; Dr Hashmukh Adhia is new Revenue Secretary (See 'Mixed Buzz') Unveil Comprehensive Strategy to tackle Black Money (See 'TIOL Edit') CBDT issues Guidance Note on reporting requirements under FATCA & New Global Standards on Automatic Exchange of Information CBDT lays down guidelines for compulsory manual selection of cases for scrutiny in current fiscal (See Instruction No 8) CX - MODVAT - Inputs were received in factory under cover of a triplicate copy of B/E which was subsequently misplaced - findings of fact have not been disputed by Revenue - authenticated exchange control copy of B/E obtained by assessee from bank could have been easily verified by authorities - Credit admissible: HC (See 'Breaking News') OROP - FM says NO to annual revision of pension Govt appoints retiring Secretary of Economic Affairs as Home Secretary ST - BAS - Agreement between HPCL & IGL for distribution of CNG through HPCL outlets - if Bench felt that agreement called for different interpretation, and that therefore decision of Coordinate Bench required reconsideration, then appropriate course should have been to refer matter to a LB: HC (See 'Breaking News') National Litigation Policy - Low value Appeals - Monetary limit - Board Instructions not retrospective (See 'DDT' Column) Income tax - Whether adducing of additional documents during course of hearing before Settlement Commission is to be construed as failure of assessee to make true and full disclosure of unaccounted income - NO: HC (See 'Breaking News') Section 67A vis--vis Point of Taxation - change in the rate of service tax (See 'ST se GST tak') Cus - Once there is a report of Agmark Lab clearly stating that samples did not conform to requirements of Basmati Rules inasmuch as presence of other rice exceeded max permissible limit of 20%, then Customs was bound by such report - Revenue's appeal allowed: HC (See 'Breaking News') CBDT Announces New Rewards Scheme for Informants for Tax Recovery (See 'DDT') I-T- Whether delay can be condoned and notice of motion can be allowed when Revenue has failed to explain why there was undue delay in removing office objections - NO : HC (See '2015-TIOL-2001-HC') Bank Holiday on Saturdays - No RTGS (See 'DDT') With inflation down RBI Governor explicitly hints at interest rate reduction Govt decides to let land Ordinance lapse; to amend Bill pending in Rajya Sabha Govt launches Sahaj, online release of new LPG connections Govt identifies 305 town for building houses for urban poor FM says best mind from legal profession should join judiciary; legal education needs huge manpower Cashless Payment: MoF seeks feedback from other Ministries on 30-Point suggestions to incentivise consumers Aviation Secretary reviews Action Plan to decongest Terminal 1D at IGIA (See 'Mixed Buzz') IRDA looking into proposal to digitalise all insurance policy documents Black Money Act - Addl CITs/JCITs to perform functions of AOs (See 'What's New') ACC goes for mega Secretary-level reshuffle; Dr Hashmukh Adhia is new Revenue Secretary (See 'Mixed Buzz') Unveil Comprehensive Strategy to tackle Black Money (See 'TIOL Edit')
 
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Condonation of delay - At toss to meet end of justice!

By Neha Pandit, Advocate

'INTEREST Republicae up sit finis litum' is the basis of the provisions of limitation in any law, but to uphold the "Principles of Natural Justice" and to reach the end of justice, the clause of "CONDONATION OF DELAY" (COD) has been incorporated in it.

The Authorities of justice can condone the delay to advance substantial justice. Therefore, delay can be condoned if sufficient cause is shown for not presenting appeal in time. Though delay up to last day of filing an appeal need not be explained, but, delay thereafter has to be explained.

Power of Commissioner (Appeals) to condone delay

Delay may be due to genuine reasons. Hence, Commissioner Appeals can condone delay up to 30 days. As per the provisions of law, Commissioner of Appeals has no powers to condone delay beyond 30 days.

Whether Tribunal can go beyond the law and condone such delay and remand the matter back to the Commissioner Appeals? To meet the end of justice, whether strict adherence of law in such matters is justifiable?

Initially, in Rayman Shoe Co. V. CCE, it was held that Commissioner cannot condone delay (beyond 30 days) and Tribunal cannot order Commissioner to condone delay and hear the case on merits or condone delay itself. Tribunal can't go into the merits of the case.

Bangalore Bench, in a number of cases, specially, in Shri Vishnu Process v. CCE, Bangalore (2005-TIOL-1506-CESTAT-BANG) held that Tribunal cannot exercise any power where statute has fixed the period for COD in a case where statute has not given any power to the Authority to condone the delay beyond the statutory period on sufficient cause being shown.

Similar view has been taken in Abhishek Auto Industries v. CC, Mumbai wherein it was held that Commissioner Appeals is not competent to entertain an appeal beyond the period on 90 days in view of specific provision contained in section 128 (1) of Customs Act, 1962.

Therefore, lawfully, if the statute provides for a period of limitation and further maximum period of limitation for which delay can be condoned, the Authority cannot extend the same.

If the legislature in its wisdom has fixed a maximum period for doing a particular thing, the Authority is not competent to prescribe the period beyond it.

Conflicting Decisions

Recently, a conflicting view has been taken by the Tribunal, Chennai, while deciding Raj and Co. v. CC, Chennai (2006-TIOL-1607-CESTAT-MAD) wherein the Tribunal condoned the delay of 256 days in filing Appeal before Commissioner Appeals and directed Ld. Commissioner Appeals to dispose off the Appeal too.

"In nutshell, Tribunal surpassed the provisions of law to meet the end of justice ".

Liberal views of COD while dealing with the Govt

Another irony could be viewed in similar matters, wherein the delay of the Government is condoned, and their cases are remanded back to the Commissioner Appeals for the adjudication.

In the case of Asst. Collector of CCE, Nagapattinam v. Marimuthu, the High Court of Madras, condoned delay of 131 days for a Govt Department on the ground that records were messed up with other papers in the office and the case was remanded.

The law of limitation, no doubt, is the same for a Private Citizen as for Governmental authorities. Government, like any other litigant must take responsibility for the Acts or omission of its officers. The provisions of law applicable to the government and private person are same and hence the expression sufficient cause cannot be construed too liberally because party in default is Government.

CONCLUSION

Rules of limitation are not meant to destroy the rights of parties. They are meant to see that parties do not resort to dilatory tactics, but see their remedy promptly.

"The technicalities of law cannot prevent court for doing substantial justice". Despite that, sometimes, the adoption of strict standard of proof (regarding reasons for the delay in filing appeal) tends to grave miscarriage of public justice.

Now the question, whether adherence to strict standards of law, that goes against justice should be followed?

(The author is a Bangalore-based Advocate)


 RECENT DISCUSSION(S) POST YOUR COMMENTS
   
 
Sub: delay condonation by commissioner Appeals

In the case of Delta Impex 2004/173/ELT/449 The Hon'ble High Court Delhi held that when maximum time limit is specified or a condonable period is prescribed delay within the condonable period alone can be condoned.similarly in the case of M.R. Tobacco the Hon'ble High Court Delhi once agian emphasised that Commissioner Appeals cannot condone delay beyond 30 days and this view was upheld by the Apex Court in 2007/213/ELT/A115. The decision of the Chennai Bench refered in the article was not for condonation of 256 days of delay but to ascertain the correct date of receipt of the order and then the Bench observed that there was no delay if the date of receipt was taken correctly.
SDR CHENNAI

Posted by Joint Chief Departmental Representative
 
 
 
 
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