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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)


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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