ORDER
P. Karthikeyan, Member (T)
1. This is an appeal filed by the Commissioner of Central Excise, Trichy against the order of the Commissioner (Appeals) Trichy along with an application for condonation of delay of 37 days in filing the appeal. The facts of the case are that the original authority had demanded an amount of Rs. 1,93,548/- from M/s. Tamilnadu Asbestos (Pipes), Karur for the goods transport operators service availed by them during the period 16.11.97 to 1.6.98. The original authority had also imposed equal amount of penalty and had demanded interest. Disposing the appeal filed by the respondents, the Commissioner (Appeals) set aside the order of the lower authority relying on a decision of the Tribunal in the case of L.H. Sugar Factories Ltd. v. CCE, Meerut – II upheld by the Supreme Court vide 2005-TIOL-105-SC-ST. The demand had been made in that case pursuant to the proceedings under Section 73 of Finance Act, 1994. The Tribunal had held that Section 73 applied to persons liable to file return under Section 70. Section 71A covered Goods Transport Operators and C&F Agents. The class of persons covered by Section 71A was not brought under the net of Section 73. Therefore the proceedings were not maintainable.
2. The appeal has been filed by the department on the ground that the Supreme Court had admitted Civil Appeal No. 1618/2005 filed by the Commissioner of Central Excise, Vadodara I in the case of Gujarat Carbon & Industries and the Civil Appeal No. 7144/2005 preferred by the Commissioner of Central Excise, Chennai III in the case of Sundaram Fasteners Ltd. and it was evident that the Hon’ble Supreme Court had considered it necessary to keep the issue open for further deliberation and final decision. In the application for condonation of delay it is stated that the Order-in-Appeal had to be accepted by the department in view of the Supreme Court’s judgment in the case of L.H. Sugar Factories Ltd. (supra). But recently the Commissioner had come across the fact that civil appeals had been admitted by the Supreme Court in Civil Appeal No. 1618/2005 filed by the Commissioner of Central Excise, Vadodara I in the case of Gujarat Carbon & Industries and the Civil Appeal No. 7144/2005 preferred by the Commissioner of Central Excise, Chennai III in the case of Sundaram Fasteners Ltd. It was obvious that the apex Court considered it necessary to keep the issue open for further final decision. Therefore, the appeal was filed belatedly.
3. Arguing the application for condonation of delay by the Department, Smt. R. Bhaghya Devi, SDR cited the following decisions of the Supreme Court and cited the observation of the apex Court as follows:
(i) Collector v. MST. Katiji and Ors.
(ii) State of Haryana v. Chandra Mani
(iii) State of Nagaland v. Lipok AO
Though standard of proof of “sufficient cause” was not different in cases of State and private litigant, they could not be put on same footing as individual would always be quicker in taking decisions. The Govt. being a impersonal machinery where no one was in charge of the matter was directly hit or hurt by the judgment sought to be subjected to appeal and the inherited bureaucratic methodology imbued with the note-making, file pushing and passing of the buck ethos, delay on its part was less difficult to understand. As the State represented the collective cause of the community the courts had to deal with the matter of sufficient cause on the part of the department with a view to dispense justice on merits in preference to the approach, which scuttles decision on merits. The learned SDR requested that in view of the observations of the Supreme Court, the short delay involved in the filing of the appeal deserved to be condoned.
4. Opposing the application, Shri S. Murugappan, learned advocate submitted that the instant case was distinguishable from the cases considered by the Hon’ble Supreme Court in the judgments cited by learned SDR. As is seen from the application for condonation of delay, the delay occurred not due to any bureaucratic delay in the Government’s functioning. The Order-in-Appeal had been accepted by the department. Subsequently, on noticing the admission of Civil Appeals filed by CCE, Vadodara – I and CCE, Chennai – III, the present appeal was filed with a delay of 37 days. He also submitted that a circumstance arising after expiry of limitation cannot constitute sufficient case for condonation of delay as was observed by the Tribunal in CC v. Jyothi Apparels Ltd. . The Tribunal in CC v. RPG Telecom Ltd. had decided that appeal filed on the basis of a subsequent judgment of Supreme Court was not a sufficient reason for condoning the delay. In the case of Ballarpur Industries Ltd. v. CCE , the Tribunal decided that appeal filed after change of legal position / clarification by a subsequent decision was not a just cause for condonation of delay in late filing of appeal. Learned advocate further submitted that the condonation of delay application did not indicate when the Civil Appeal was filed and the reason for the delay between the admission of the Civil Appeals and the filing of the subject appeal.
5. I have considered the rival submissions. From the condonation of delay application it is obvious that the appeal had been belatedly filed not because of the slow functioning of the departmental. It is apparent that the Order-in-Appeal was accepted and later, on coming to know that certain civil appeals had been admitted by the Supreme Court, the subject appeal has been filed with an application for condonation of delay. The appellant was not prevented by any particular circumstance to file appeal in time. Delay in filing the appeal can be condoned if there was sufficient cause for not presenting the appeal within the prescribed period. In the subject case, it cannot be construed that there was any sufficient cause, which prevented the department from filing the appeal in time. I find that in the case of CC v. Jyothi Apparels Ltd. (supra) the Tribunal observed as follows:
The only reason for the delayed filing of the appeal is the decision of the Supreme Court which has been rendered much after the expiry of the period of limitation. It is settled law that no event or circumstance arising after the expiry of limitation can constitute sufficient cause for condonation of delay. A subsequent decision of the Supreme Court is no cause for accepting an appeal which had already become time barred by a few months.
Also in Bellarpur Industries Ltd. (supra) the Tribunal had in paras 9 and 13 made the following observations:
9. We fear, holding such a ground as providing just cover, could open Pandora’s Box for one and all. Any one can come at any time, even after a lapse of several years if and when some decision from some corner disturbing the accepted legal position is delivered. In our view, the doctrine of “just cause” and condonation of delay thereunder is not intended to provide any premium under such circumstances and as such we are unable to subscribe to such a proposition.
13. We, under the circumstances find no justifiable ground to hold that the applicants were prevented by just and sufficient cause, from agitating the matter, so as to warrant any condonation of delay. On the contrary, the party having accepted the verdict of the Collector (Appeals), has permitted the time to lapse, and has come only when some new point, on account of some other decision, is now available. The application for condonation of delay under the circumstances, does not merit any consideration.
In view of my above findings and the ratios of the decisions cited, I find that there was no sufficient cause, which prevented the department from filing the subject appeal in time. Therefore, the condonation of delay application is dismissed and consequently the appeal also gets dismissed.
(Dictated and pronounced in open Court)