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OJCA/394/2006 7/ 7 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL
APPLICATION No. 394 of 2006
In
TAX
APPEAL [STAMP NUMBER] No. 3526 of 2006
with
TAX
APPEAL [STAMP NUMBER] No. 3526 of 2006
==========================================
COMMISSIONER,
CENTRAL EXCISE & CUSTOMS - Applicant(s)
Versus
M/S.
GUJARAT ALKALIES & CHEMICALS LTD. - Respondent(s)
=========================================
Appearance :
MR
PURVISH J MALKAN for Applicant(s) : 1,
MR
HASIT DILIP DAVE for Respondent(s) :
1,
==========================================
CORAM
:
HONOURABLE
MR.JUSTICE D.A.MEHTA
and
HONOURABLE
MS.JUSTICE H.N.DEVANI
Date
: 28/07/2008
ORAL
ORDER
(Per
: HONOURABLE MR.JUSTICE D.A.MEHTA)
This
application seeks condonation of delay of 280 days in preferring the
Tax Appeal in the following circumstances.
An
order came to be made by Customs, Excise & Service Tax Appellate
Tribunal on 14.6.2005. The said order was received by the applicant
revenue on 18.8.2005. As per provisions of law, the appeal before
this High Court was required to be filed on or before 14.2.2006. It
is the case of the applicant that the applicant could not prefer the
appeal in time because the Tribunal in its order dated 14.6.2005 had
not mentioned full facts of the case, nor had discussed the main
issue involved and hence, by mistake, a decision was taken not to
file appeal against the order of Tribunal, and only subsequently on
learning full facts of the case, it was realized that the order of
Tribunal was wrong.
This
application was resisted by the respondent assessee by tendering an
affidavit in-reply dated 23rd October, 2007. Therefore,
the applicant filed an additional affidavit dated 26th
December, 2007.
After
hearing the parties, the Court called upon the applicant to bring
better particulars on record as the Court was not, prima facie,
satisfied with the cause shown for the delay. Accordingly, the
applicant has tendered further additional affidavit dated 24.7.2008.
Heard the learned
counsel for the applicant and the learned advocate for the
respondent. Learned counsel for the applicant has reiterated the
averments made in the affidavits.
After hearing the
parties, it becomes apparent that no sufficient cause is shown for
condoning the delay in question. The relevant paragraphs of the
affidavit dated 24.7.2008 made by the applicant read as under:
?S[4] I say and
submit that the order of the Hon’ble Tribunal was received by the
department on 18.08.2005. Immediately thereafter, the office of the
Commissioner, Central Excise and Customs, Vadodara ? II had called
upon the records of the case and report from the concerned division
on the very same day i.e. on 18.08.2005. Annexed hereto and marked
as Annexure-A is the copy of the letter dated 18.08.2005.
[5] The order was
thereafter accepted by my predecessor on 22.08.2005, which was
intimated to appropriate division by a letter dated 23.08.2005.
Annexed hereto and marked as Annexure-B is the copy of the letter
dated 23.08.2005.
[6] Thereafter, the
respondent assessee was pursuing the matter and had taken further
credit on the basis of the order of the Hon’ble Tribunal, for the
past period from August 1998 to February 2000, the fact of which came
to the notice of the department on 03.08.2006 and the matter was
considered again by examining the order of the Hon’ble Tribunal. On
21.08.2006, a decision was taken to file an appeal before this
Hon’ble Court, considering that the judgement on which Hon’ble
Tribunal has relied upon is not applicable to the present case.
[7] I humbly submit
that the applicant was not at all negligent in preferring the appeal,
but there occurred a mistake in the interpretation of the order on
the part of the department earlier, which has caused the delay in
approaching this Hon’ble Court by way of tax appeal.??
The aforesaid
averments establish that the Commissioner took a conscious decision
on 22.8.2005 to accept the order made by the Tribunal and such a
fact was conveyed to the Range Officer vide communication dated
23.8.2005. The Annexures placed along with the aforesaid affidavit
indicate that vide communication dated 18.8.2005, the Office of the
Commissioner of Central Excise had, before taking a conscious
decision, called for the entire case records along with a copy of
show cause notice, order in-original etc., for ascertaining whether
the order made by Tribunal was to be accepted or not. In fact, the
said communication also refers to the amount of duty and penalty
particulars and calls upon the Range Officer to supply the same to
the Office of the Commissioner. Thus, it is clear that, after
considering the entire case record, a conscious decision had been
arrived at by the Commissioner not to challenge the order of the
Tribunal which was in favour of the respondent assessee.
The only reason for
taking a different view of the matter is, as stated in paragraph
No.6 of the affidavit, that the respondent assessee was pursuing the
matter further and had taken credit on the basis of the order of the
Tribunal. It is in these circumstances that a decision was taken on
21.8.2006 to file an appeal before the High Court.
Thus, the ground
advanced to make out a sufficient cause does not carry the case of
the applicant any further. The law of limitation is well settled.
In case a person against whom an adverse order is made and a
statutory right to challenge the same is available, if no challenge
is raised within the prescribed period of limitation, and the facts
on record establish that a conscious decision was taken to abandon
the cause, there must be a change in circumstances, which is strong
enough, to establish sufficient cause when the decision is
challenged subsequently beyond the period of limitation. Otherwise,
once it is found that a cause has been abandoned, normally there can
be no case for condoning the delay.
In the present set of
facts and circumstances of the case, considering the correspondence
annexed to the affidavit dated 24.7.2008 and the inquiry undertaken
before recording a decision not to challenge the order of Tribunal,
there can be no doubt that the applicant had consciously abandoned
the cause and no ground is made out to establish in what manner such
a conscious decision is incorrect. Merely because the respondent
assessee was pursuing the mater further, cannot be a ground to come
to the conclusion that the order of the Tribunal was wrong on the
basis of judgement on which reliance has been placed by Tribunal
being inapplicable. In fact, nothing has been shown as to how the
said judgement becomes inapplicable when originally the same order
of Tribunal was found to be correct in law and justified on facts.
Even the revenue implications were considered by the Commissioner
while recording the decision when the particulars of duty and
penalty were called for.
In the aforesaid set
of facts and circumstances of the case, in absence of any sufficient
cause having been made out, the delay in preferring Tax Appeal
cannot be condoned and the application is hereby rejected. Rule
discharged. There shall be no order as to costs.
TAX APPEAL [ST]
NO.3526 OF 2006 :
In light of the order
made in the O.J. Civil Application No.394 of 2006, this Appeal stands
dismissed for all intents and purposes.
[D.A.MEHTA,
J.]
[HARSHA
DEVANI, J.]
parmar*
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