ORDER
P. Karthikeyan, Member (T)
1. Revenue has filed this COD application for entertaining their appeal against the order of the Commissioner (Appeals) dated 19/11/05, vacating an order of the original authority demanding differential service tax under the category ‘Steamer Agent’ for various services provided by them. The appeal has been filed with a delay of 98 days. The impugned order had been received in the Commissionerate on 06/12/05 and the appeal should have been filed in the normal course on or before 06/03/06. As per the COD application, the appeal was not filed as in a similar case involving CHA services, the Commissioner had decided similar issue in the same way the Commissioner (Appeals) decided the impugned order in respect of Steamer Agent’s services.
2. The subject appeal was filed on receipt of direction to that effect from the Board on 24/4/06 against the order of the Commissioner in the CHA matter. It appears that the impugned order had initially been accepted. As per the time chart filed along with the COD application, the delay of 3 months is explained as spent in obtaining the file from the concerned. Even after receipt of the Board’s review order dated 28/4/06, the appellant filed the appeal only after 46 days had elapsed.
3. The following is the time chart filed by the revenue to explain the delay:
a.
Date of receipt of the Order-in-Appeal
09.12.05
b.
Date of calling the case file
23.01.06
c.
Date of receipt of case file
26.04.06
d.
Date of receipt of the Board’s letter
28.04.06
e.
Date of decision to file appeal by the Commissioner
22.05.06
f.
Date of preparation of review direction and application
for COD
29.05.06
g.
Date of preparation of revised review direction
31.05.06
h.
Signature by the Commissioner
01.06.06
4. Ld. SDR has cited the following two judgments of Supreme Court in support of the COD application. In the case of State of Nagaland v. Lipok AO , the Apex Court had observed that the application for COD should be dealt within a justice oriented approach keeping in mind the functioning of the Government departments. In the case of State of Haryana v. Chandra Mani , the apex court had decided that a certain amount of latitude was not impermissible when public cause was involved. The state should not be put on the footing as an individual.
5. The Ld Counsel cited the decision of this Bench in CCE, Trichy v. Tamilnadu Asbestos reported in 2006 (4) S.T.R. 316 (Tri. Chen.), wherein the application for condonation of delay of 37 days in filing the appeal, filed by the revenue was rejected. The said decision was made after considering the judgments cited by the Ld. SDR, according to the Ld. Counsel.
6. On a careful consideration of the submissions made by both sides and the facts contributing to the delay, I do not find that the appellant had pursued the appellate remedy with diligence it deserved. It is seen from the Apex Court’s decision in the case of UOI v. Tata Yodogawa Ltd. reported in 1988 (38) ELT 739 (S.C.), that in that case the application seeking condonation of delay of 51 days filed by the revenue was dismissed for the reason that the appellant had failed to explain the cause for the delay. The hon’ble apex Court felt that the delay was not condonable even after giving certain latitude to the appellant, it being an impersonal body and took longer time than private bodies or individuals. The delay involved has not been satisfactorily explained. In the circumstances, I do not find that the delay in filing the appeal had occasioned due to sufficient cause. Accordingly, I reject the COD application. The appeal also is dismissed.
(Dictated and pronounced in open court)