Taxindiaonline.com
Taxindiaonline.com Taxindiaonline.com TIOL Tube Taxindiainternational.com
 
LOGIN
Forgot Password |  Register  
Wednesday , August 24, 2016 | Updated : Aug 23, 22:49 IST
Income Tax    Customs    Excise    Service Tax    FEMA    DGFT    SEZ    Misc    Pitara    Budget   
About Us Contact Us Advertise
Taxindiaonline.com Taxindiaonline.com Taxindiainternational.com
 
 
NEWS FLASH
 
Wealth Creation - China ranks second; India gets 7th & USA tops global tally: New World Wealth Report DIPP wants States to have own IPR Policy to promote innovation Education fuelling growth of services sector in India: Jaitley NGT imposes Rs 100 Cr fine on Panama-based shipper & its Qatar-based subsidiaries for oil spill off Mumbai coast Udaipur Declaration adopted for BRICS Disaster Risk Reduction FM asks MCA & MoF officials for quick action for implementation of Bankruptcy Code (See 'Mixed Buzz') Minister calls for '3A' approach towards fertiliser (See 'Mixed Buzz') Revision of Manual of Policies and Procedures for Purchase of Goods.(See 'MISC' in Pitara) Penalty - Legislature while granting discretion to executive has also provided for sufficient guidelines and safeguards so that such discretion does not convert into arbitrary or discretionary exercise of powers -challenge to constitutional validity of s. 11(2), 11(3) of FTDR Act, 1992 fails: High Court (See 'Breaking News') ACC approves appointment, repatriation of officers, Dilip Sharma, IRS, posted as DG, Election Commission (See 'Mixed Buzz') Budget exercise begins, CBDT invites ideas for legislative changes (See 'What's New') 8 Indian airports figure in global list: NITI Aayog (See 'Mixed Buzz') ST - Tube well Construction - Exempted - CBEC Clarifies (See 'DDT' Column) ST - Appellant failed to show advance amount in ST-3 return & discharge tax - there was a confusion at material time with regard to manner of payment of ST in respect of newly introduced WCS fit case for invocation of s.80: CESTAT (See 'Breaking News') Mineral Royalties - Multiple taxes (See 'Guest Column') I-T - Whether deduction for contribution made to gratuity fund is allowable when the plea that payment was made to approved gratuity fund was not only raised at belated stage but also there did not appear to be concluded contract between assessee and the fund - NO: HC (See 'Breaking News') Varying concept of Export of Service under ST law & FTP (See 'Guest Column') CX - There is no time limit prescribed for issue of SCN u/s 11B and thus it is open to Revenue to point out shortcomings in refund claim even after one year: CESTAT (See 'Breaking News') PM reviews key projects - 3.5 Cr LED bulbs distributed; 240 unmanned railway crossings removed & 6.9 lakh rural houses built in Q1 Indian bureaucrat elected on Board of Directors of CAPAM (See 'Mixed Buzz') GST - RS reviews IT preparedness with RBI, CCA, CBEC and IT heads of 29 banks (See 'Mixed Buzz') CBEC reinforces team by putting four more senior officers to handle AEO Programme (See 'Service News' in Pitara) Customs (Provisional Duty Assessment) Regulations, 2011 rescinded (See 'NT-113' in What's New) CBEC issues detailed guidelines on provisional assessment u/s 18 of Customs Act (See Cir 38 in 'What's New') HP & Chattisgarh also ratify 122nd Constitutional Amendment Bill CBDT promotes 97 IRS officers as JCITs (See 'Promotion' in Pitara) EC amends Rules to review national or state-level status of every political party every 10 years CBDT Member Gopal Mukherjee to hold zonal charge of Karnataka, Goa & Kerala in addition to Kolkata, Guwahati & Patna (See 'Promotion' in Pitara) Short Term Accommodation & Service Tax - the impasse (See 'ST se GST tak')
 
Bookmark and Share
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
 
 
 
 
Download on the App Store
Get it on Google play
TIOL SEARCH
 
Visit TIOLCorplaws.com
TIOL Subscriptions
 All-In-One Package
 Indirect Tax Package
 Income Tax Package
<< More Packages>>
 
   
             
Income Tax Customs Excise Service Tax FEMA DGFT SEZ Misc Pitara Budget
  • Notifications
  • Circulars
  • Instructions
  • SC Cases
  • HC Cases
  • ITAT Cases
  • Advance Ruling
  • Settlement
  • Other Cases
  • Directorate of Income Tax (Systems)
  • Reports
  • Customs Rules
  • Tariff Notfn
  • CVD
  • Non Tariff Notfn
  • Circulars
  • Anti-dumping Notfn
  • Safeguard Duty Notfn
  • SC Cases
  • HC Cases
  • Cestat Cases
  • Advance Ruling
  • Settlement
  • Drawback Cases
  • MISC Circulars
  • CCRs - 2004
  • Central Excise Rules
  • Tariff Notfn
  • Non Tariff Notfn
  • Circulars
  • SC Cases
  • HC Cases
  • Cestat Cases
  • Advance Ruling
  • Cesses Notfications
  • Excise Amendment
  • MISC Circulars
  • 37B Order
  • Settlement
  • Commr.(A) Order
  • Tribunal
  • GST Kitty
  • Notifications
  • Service Tax Rules
  • 37B Order
  • Circulars
  • SC Cases
  • HC Cases
  • Cestat Cases
  • Advance Ruling
  • FAQ
  • Finance Act, 1994
  • Commr. (A) Orders
  • Removal of Difficulty
  • VCES
  • Accounting Head
  • Miscellaneous
  • DIPP Notification
  • FDI Approved
  • Exchange Manual
  • Fema Notifications
  • SC Cases
  • HC Cases
  • RBI Notifications
  • RBI Circulars
  • Act
  • Rules
  • Regulations
  • Master Circulars
  • PMLA Notifications
  • Depository Scheme
  • Press Note
  • Notifications
  • Circulars
  • Public Notices
  • Trade Notice
  • FTDR Amendment 2010
  • Notifications
  • Instructions
  • Act 2005
  • Rules 2006
  • DGEP
  • State Acts
  • State Policy
  • MISC
  • SC Cases
  • HC Cases
  • VAT Cases
  • Service News
  • Promotion
  • Transfer
  • Deputation Posts
  • Cadre Review
  • Transfer Policy
  • Training Circulars
  • Recruitment Rules
  • Pay Commission
  • Service Cases
  • The Insider
  • MISC
  • Budget Speeches
  • Union Budgets
  • Economic Surveys
  • TRU - D. O. Letter
  • Finance Acts
  • Finance Bill
  • Budget Circular
  • A Taxindiaonline Website. Copyright © 2016 Taxindiaonline.com Pvt.Ltd. All rights reserved. | Powered by 4th Dimension