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Central Excise - Classification - Close-Up Whitening dental cleaner is not 'toothpaste' but other form of dental hygiene and, therefore will have to be classified under sub-heading 3306.90: Supreme Court (See 'Breaking News') Refund of TED - It is well-settled principle of law that Court cannot direct statutory authority to exercise discretion in particular manner - Single Judge ought not to have directed DGFT to pass an order keeping in mind observations made therein: High Court (See 'Breaking News') ST - Appellant, during July to Sept 2007, hiring rigs from foreign parties and enlisting same to ONGC - services would not fall under 'Mining of mineral oil and gas service' - when there can be no ST liability, question of interest and penalty does not arise: CESTAT (See 'Breaking News') Explanation inserted by Notifications 37, 38 and 39-CE operate retrospectively (See 'Guest' Column) I-T - Whether assessee can claim depreciation although land and building vested in Municipal body and assessee had only made part payment to Housing Board but was in full control of buildings - YES: HC (See 'Breaking News') Confusion, damage control and now, more confusion (See 'Guest' Column) Competition Commission imposes penalty of Rs 420 Cr on Hyundai; Relief for Reva and Premier (See 'Breaking News') Export of sawn timber to Nepal - CBEC notifies Raxul as authorised LCS (See 'What's New') CX - Rule 6 of CCR is not enacted to extract illegal amount - legislature has not enacted any provision by which credit, which is other than credit attributed to input services used in exempted goods or services can be recovered from the assessee - 25 cr. Demand set aside: CESTAT (See 'Breaking News') UN Assembly endorses action plan on post-2015 development financing (See 'Mixed Buzz') Union Cabinet passes resolution stating Dr Kalam was a visionary scientist & true nationalist; Parliament adjourned Summer crops prospects are good so far except in four States: IMD Chief ST - Job worker paying ST upon insistence by audit - Merely because department has detected and assessee has paid ST, that alone is not sufficient to allege that there is suppression - Credit rightly availed: CESTAT (See 'Breaking News') Good Bye Mr Kalam (See 'DDT') Rubaru with RS Panel on GST Bill - A humbling experience! (See 'ST se GST tak') I-T - Whether when Revenue initially takes approval only for Survey but finds cash at assessee's premises, same Survey can be converted into Search after taking further approval - YES: HC (See 'Breaking News') ST - Shamianas for Magh Mela in Allahabad - No Tax (See 'DDT') ST - No specific head of service was proposed in SCN nor confirmed in o-in-o - SCN + order are vague - classification of taxable service must be specified in SCN in order to fasten liability of ST - demand of Rs.4.12 cr set aside: CESTAT (See 'Breaking News') MSME Sector accounts for above 37% of GDP; 44% of India's export (See 'Mixed Buzz') Public Institutions pay avoidable ST - CAG (See 'DDT') VAT - Whether when assessee has taken steps to comply with requirement of submitting statutory declaration forms, though belatedly, it is open to Revenue to demand higher rate of tax alleging failure of compliance - NO: HC (See '2015-TIOL-1691') Former President Dr APJ Abdul Kalam dies in Shillong Govt divests 5% stake in PFC; mops up Rs 3747 Crore Delhi Customs (Preventive) seizes seven aircrafts for alleged violation of Customs Act Wealth Tax Return Date also extended to Aug 31, 2015 (See 'Instructions' in Income Tax) IGI Airport Customs nabs pax coming from Dubai with gold worth Rs 64 lakhs, concealed in form of winding plates of motor and meat grinder Gujarat HC sets up Panel to ensure basic facilities like housing and hospitals to work force at Alang Shipyard Cus - Re-labelling of boxes of Vitrified & Glazed tiles with higher MRP after import - Sec 3(2) will not become ineffective in absence of Sec 4(A)(4) of CEA, 1944 for import made prior to 14.05.2003 - ABB decision does not apply - Differential CVD duty demand upheld: CESTAT by Majority (See 'Breaking News') SIT recommendations on curbing black money generation - FM says it's too early to firm up mind for follow up actions Major Terror Attack in Gurdaspur - 9 killed; PM holds high-powered meet CBDT notifies 1081 as Cost Inflation Index for FY 2015-16 (See Notification No 60 in 'What's New') 88th Amendment to the constitution - Precursor to GST? (See 'DDT') ST - Charges of documentation arise at request of customer and are paid outside of Agreement to appellant only - these activities constitute service provided directly to customer and do not constitute services provided on behalf of Principal, hence it would not fall under BAS: CESTAT (See 'Breaking News') Withdrawal of Accredited Client Programme facility causing turmoil (See 'Guest Column') Income tax - Whether if during search in assessee's premises, a locker key of another assessee is seized, market value of jewellery stored in such locker is to be added in income of searched assessee as deemed income - YES: HC (See 'Breaking News') Place of removal under Central Excise - A note of caution (See 'Guest Column') SCN Pending for 12 years - Will JNCH Reply? (See 'DDT') CENVAT Credit on outward transport after 01.04.2008 - Credit is admissible in case of FOR destination sale - Amendment to CCRs, 2004 with effect from 01.04.2008 does not alter admissibility - HC sets aside order of Tribunal (See 'Breaking News') Central Excise - Classification - Close-Up Whitening dental cleaner is not 'toothpaste' but other form of dental hygiene and, therefore will have to be classified under sub-heading 3306.90: Supreme Court (See 'Breaking News') Refund of TED - It is well-settled principle of law that Court cannot direct statutory authority to exercise discretion in particular manner - Single Judge ought not to have directed DGFT to pass an order keeping in mind observations made therein: High Court (See 'Breaking News') ST - Appellant, during July to Sept 2007, hiring rigs from foreign parties and enlisting same to ONGC - services would not fall under 'Mining of mineral oil and gas service' - when there can be no ST liability, question of interest and penalty does not arise: CESTAT (See 'Breaking News') Explanation inserted by Notifications 37, 38 and 39-CE operate retrospectively (See 'Guest' Column) I-T - Whether assessee can claim depreciation although land and building vested in Municipal body and assessee had only made part payment to Housing Board but was in full control of buildings - YES: HC (See 'Breaking News') Confusion, damage control and now, more confusion (See 'Guest' Column) Competition Commission imposes penalty of Rs 420 Cr on Hyundai; Relief for Reva and Premier (See 'Breaking News') Export of sawn timber to Nepal - CBEC notifies Raxul as authorised LCS (See 'What's New') CX - Rule 6 of CCR is not enacted to extract illegal amount - legislature has not enacted any provision by which credit, which is other than credit attributed to input services used in exempted goods or services can be recovered from the assessee - 25 cr. Demand set aside: CESTAT (See 'Breaking News') UN Assembly endorses action plan on post-2015 development financing (See 'Mixed Buzz') Union Cabinet passes resolution stating Dr Kalam was a visionary scientist & true nationalist; Parliament adjourned Summer crops prospects are good so far except in four States: IMD Chief ST - Job worker paying ST upon insistence by audit - Merely because department has detected and assessee has paid ST, that alone is not sufficient to allege that there is suppression - Credit rightly availed: CESTAT (See 'Breaking News') Good Bye Mr Kalam (See 'DDT') Rubaru with RS Panel on GST Bill - A humbling experience! (See 'ST se GST tak') I-T - Whether when Revenue initially takes approval only for Survey but finds cash at assessee's premises, same Survey can be converted into Search after taking further approval - YES: HC (See 'Breaking News') ST - Shamianas for Magh Mela in Allahabad - No Tax (See 'DDT') ST - No specific head of service was proposed in SCN nor confirmed in o-in-o - SCN + order are vague - classification of taxable service must be specified in SCN in order to fasten liability of ST - demand of Rs.4.12 cr set aside: CESTAT (See 'Breaking News') MSME Sector accounts for above 37% of GDP; 44% of India's export (See 'Mixed Buzz') Public Institutions pay avoidable ST - CAG (See 'DDT') VAT - Whether when assessee has taken steps to comply with requirement of submitting statutory declaration forms, though belatedly, it is open to Revenue to demand higher rate of tax alleging failure of compliance - NO: HC (See '2015-TIOL-1691') Former President Dr APJ Abdul Kalam dies in Shillong Govt divests 5% stake in PFC; mops up Rs 3747 Crore Delhi Customs (Preventive) seizes seven aircrafts for alleged violation of Customs Act Wealth Tax Return Date also extended to Aug 31, 2015 (See 'Instructions' in Income Tax) IGI Airport Customs nabs pax coming from Dubai with gold worth Rs 64 lakhs, concealed in form of winding plates of motor and meat grinder Gujarat HC sets up Panel to ensure basic facilities like housing and hospitals to work force at Alang Shipyard Cus - Re-labelling of boxes of Vitrified & Glazed tiles with higher MRP after import - Sec 3(2) will not become ineffective in absence of Sec 4(A)(4) of CEA, 1944 for import made prior to 14.05.2003 - ABB decision does not apply - Differential CVD duty demand upheld: CESTAT by Majority (See 'Breaking News') SIT recommendations on curbing black money generation - FM says it's too early to firm up mind for follow up actions Major Terror Attack in Gurdaspur - 9 killed; PM holds high-powered meet CBDT notifies 1081 as Cost Inflation Index for FY 2015-16 (See Notification No 60 in 'What's New') 88th Amendment to the constitution - Precursor to GST? (See 'DDT') ST - Charges of documentation arise at request of customer and are paid outside of Agreement to appellant only - these activities constitute service provided directly to customer and do not constitute services provided on behalf of Principal, hence it would not fall under BAS: CESTAT (See 'Breaking News') Withdrawal of Accredited Client Programme facility causing turmoil (See 'Guest Column') Income tax - Whether if during search in assessee's premises, a locker key of another assessee is seized, market value of jewellery stored in such locker is to be added in income of searched assessee as deemed income - YES: HC (See 'Breaking News') Place of removal under Central Excise - A note of caution (See 'Guest Column') SCN Pending for 12 years - Will JNCH Reply? (See 'DDT') CENVAT Credit on outward transport after 01.04.2008 - Credit is admissible in case of FOR destination sale - Amendment to CCRs, 2004 with effect from 01.04.2008 does not alter admissibility - HC sets aside order of Tribunal (See 'Breaking News')
 
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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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