Justice should never get sidelined by Mere technicalities - CESTAT Halts Legalising Injustice Over 23-Day Appeal Delay

Imagine you're at the helm of your company's affairs. A GST order arrives, and it's not in your favor.

You're perturbed and turn to your director for guidance. But there's a catch - he's about to embark on an overseas trip.

The clock is ticking, and the 60-day window to file an appeal is closing fast. Your director returns just 10 days before the deadline, but the company is in a quandary.

Finally your company decides to appeal, but alas, you file appeal 23 days late.

You seek condonation for the delay, citing the director's absence as the primary reason.

The Commissioner (Appeals), however, dismisses your appeal on the grounds of this delay.

He relies on the judgment of the Tribunal Madras in the case of Zafarullah vs. Collector of Customs, which emphasizes the need for diligence in pursuing appellate remedies.

Enter CESTAT.

They delve into the matter, referencing landmark decisions from the Supreme Court in the case of Ramlal vs. Rew Coalfields and the Madras High Court's ruling in Municipal Corporation, Gwalior vs Ramcharan.

The essence?

Substantial justice should always take precedence over procedural lapses.

The Tribunal, emphasizing this principle, overrules the Commissioner's decision.

They particularly highlight the Supreme Court's observation that

Judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice."

Your appeal is back on track, set to be reconsidered on its merits.

The message is clear:

Justice should never be sidelined by mere technicalities.

Court Name : CESTAT Allahabad

Parties : M/s E L Sewedy Electrometer (P) Ltd. Vs Commissioner of Central GST & Central Excise, Noida

Judgement Ref : Excise Appeal No.70104 of 2020

Decision Date : 17 August 2023

CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL

ALLAHABAD

REGIONAL BENCH - COURT NO.I

Excise Appeal No.70104 of 2020

(Arising out of Order-in-Appeal No.NOI-EXCUS-001-APP-1113-19-20 dated

27/11/2019 passed by Commissioner (Appeals) Central Goods & Services

Tax, Noida)

M/s E L Sewedy Electrometer (P) Ltd. …..Appellant

(C-138, Sector-63, Noida, U.P.)

VERSUS

Commissioner of Central GST &

Central Excise, Noida ….Respondent

(C-56/42, Renu Tower, Sector-62, Noida)

APPEARANCE:

A Letter on Record, for the Appellant

Shri Santosh Kumar, Authorised Representative for the Respondent

CORAM : HON’BLE MR. SANJIV SRIVASTAVA, MEMBER (TECHNICAL)

FINAL ORDER NO.- 70031/2023

DATE OF HEARING : 17 August, 2023

DATE OF DECISION : 17 August, 2023

SANJIV SRIVASTAVA:

This appeal has been filed by the appellant against Orderin-Appeal No.NOI-EXCUS-001-APP-1113-19-20 dated 27.11.2019 passed by Commissioner (Appeals) Central Goods & Services Tax, Noida. By the impugned order Commissioner

(Appeals) has also observed as follows:-

“5. I have carefully gone through the case records,

grounds of appeal, the averments made during the course

of personal hearing, oral submissions, application of

condonation of delay and submissions made through letter

dated 21.10.2019 and relevant provisions of the Act. First

of all, I take up the issue of condonation of delay in filing

the appeal. The reason of delay in filing the appeal as

submitted by the Appellant are that “”Director of the

company had gone out of India and no person was

competent to take decision issue of filing the appeal”

6. I find that the adjudicating authority passed the

impugned order on 23.03.2018 which was received by the

appellant on 23.03.2018. The appeal against the said

impugned order has to be filed within 60 days of the

receipt of the order. The appeal has been filed in this office

on 14.06.2018. There is a delay of 23 days in filing the

appeal. Under the proviso of Section 35 of the Central

Excise Act, 1944 the delay with sufficient cause could be

condoned only for further period of thirty days. In this

regard, I observe from the copy of passport (showing

outgoing and incoming detail of the director) submitted

vide their letter dated 21.10.2019 that the director had

departed abroad (Egypt) on 23rd April, 2018 after one

month of receipt of the impugned order and he arrived in

India on 14th May, 2018 i.e. 8 days before the due date of

filing of the appeal against the impugned OIO as

prescribed time limit under Section 35 of the Central

Excise Act, 1944. From the above, I find that appellant had

a sufficient time to take decision/filing the appeal as

prescribed under Section 35 of the Central Excise Act,

1944.

7. I also place the reliance upon the judgement of

Hon’ble Tribunal Madras in the case of Zafarullah vs.

Collector of Customs CE 1992 (60) E.L.T. 263 (Tribunal),

wherein Tribunal held that “The Hon’ble Supreme Court in

the case of Ramlal vs. Rew Coalfields, AIR 1962 S.C. 361,

have held that bona fides and due diligence are material

and relevant factors for consideration of condonation of

delay and that even after sufficient cause has been shown

by the party he is not entitled to the condonation of delay

as a matter of right. It has also been held by the Supreme

Court that once the limitation period is over the appellant

is called upon to explain the day-to-day delay. In the

present case it is observed that the appellant has made

general pleas about the delay in filing the appeal and, as

mentioned above, the appellant was not diligent enough in

pursuing the appellate remedy. In the facts and

circumstances of the case, therefore, the delay in filing the

appeal is not condoned.”

8. I find that the reason for condonation of delay

given by the Appellant is very contradictory and irrational

for not filing the appeal within the prescribed time limit.

The appellant has not been able to satisfy me in this

regard through their evidence submitted vide letter dated

21.10.2019. In such a situation I am inclined to hold that

the reasons mentioned for condonation of delay is neither

proper nor sufficient and in the facts and circumstances of

the case, the application is dismissed and consequently,

without going into the merits of the case, the appeal

bearing No.499/CE/Noida/APPL/NOI/2018-19 dated

14.06.2018 is rejected on the grounds of limitation

period.”

2.1 Appellant has vide his letter dated 14.08.2023 requested

for decision on merits.

2.2 Learned Authorized Representative submits that the

director of Company has left the country after one month from

the date of receipt of the order. The decision of filing of appeal

could have been taken within one month before the Director left

the country. Accordingly, the Commissioner (Appeals) was fully

justified in condoning the delay and dismissing the appeal filed

by the appellant.

3.1 I have considered the impugned order along with

submissions made in appeal and during the hearing of appeal by

the Authorized Representative.

3.2 The only issue that is required to be considered in this

appeal is as to whether the Commissioner (Appeals) was

justified in rejecting the appeal of the appellant on the ground of

limitation. Commissioner (Appeal) has been authorized under the

Central Excise Act, 1944 to condone the delay up to 30 days in

filing the appeal.

3.3 It is settled law for such technicalities right of appeal - to

be heard by a Competent Appellate Authority, as statutorily

provided should not be withered away. Commissioner (Appeals)

in this case by not allowing the application for condonation of

delay has denied the opportunity to the appellant to put his case

on merits in appeal filed. There is enough reason to justify the

delay of twenty three days ideally such delay should have been

condoned and appeal heard on merits.

3.4 In case of Municipal Corporation, Gwalior vs Ramcharan

(D) by Lrs [2002 (142) E.L.T. 275 (S.C.)], Hon’ble Supreme

Court has held:-

“..Valuable rights of the parties in an immoveable property

are involved. On the totality of the facts and circumstances of

the case, we are of the opinion that the High Court ought to

have been taken a liberal, and not a rigid and too technical a

view of the issue before it and should have condoned the delay

in filing the appeal and concentrated on examining whether the

appeal raised any substantial question of law worth being heard

by the High Court. In our opinion, a sufficient cause for

condoning the delay in filing the appeal before the High Court is

made out.”

3.5 In case of Kothari Sugars And Chemicals Ltd [2018 (361)

ELT 643 (Mad)] Hon’ble Madras High Court held as follows:

“2. It is worthwhile to notice a decision of the Apex Court

reported in AIR 1987 SC 1353 = 1987 (28) E.L.T. 185 (S.C.)

(Collector, Land Acquisition, Anantnag and Another v. Mst. Katiji

and Others) held as follows :

“3. The legislature has conferred the power to condone delay

by enacting Section 5 of the Indian Limitation Act of 1963 in

order to enable the Courts to do substantial justice to parties by

disposing of matters on ‘merits’. The expression “sufficient

cause” employed by the legislature is adequately elastic to

enable the Courts to apply the law in a meaningful manner which

subserves the ends of justice that being the life-purpose for the

existence of the institution of Courts. It is common knowledge

that this Court has been making a justifiably liberal approach in

matters, instituted in this Court. But the message does not

appear to have percolated down to all the other Courts in the

hierarchy. And such a liberal approach is adopted on principle as

it is realized that :-

“Any appeal or any application, other than an application under

any of the provisions of Order XXI of the Code of Civil Procedure,

1908, may be admitted after the prescribed period if the

appellant or the applicant satisfies the Court that he had

sufficient cause for not preferring the appeal or making the

application within such period.”

1. Ordinarily a litigant does not stand to benefit by lodging

an appeal late.

2. Refusing to condone delay can result in a meritorious

matter being thrown out at the very threshold and cause of

justice being defeated. As against this when delay is condoned

the highest that can happen is that a cause would be decided on

merits after hearing the parties.

3. “Every day’s delay must be explained” does not mean

that a pedantic approach should be made. Why not every hour’s

delay, every second’s delay? The doctrine must be applied in a

rational common sense pragmatic manner.

4. When substantial justice and technical considerations are

pitted against each other, cause of substantial justice deserves

to be preferred for the other side cannot claim to have vested

right in injustice being done because of a non-deliberate delay.

5. There is no presumption that delay is occasioned

deliberately, or on account of culpable negligence, or on account

of mala fides. A litigant does not stand to benefit by resorting to

delay. In fact he runs a serious risk.

6. It must be grasped that judiciary is respected not on

account of its power to legalize injustice on technical grounds but

because it is capable of removing injustice and is expected to do

so. Making a justice-oriented approach from this perspective, there

was sufficient cause for condoning the delay in the institution of

the appeal. The fact that it was the ‘State’ which was seeking

condonation and not a private party was altogether irrelevant.

The doctrine of equality before law demands that all litigants,

including the State as a litigant, are accorded the same

treatment and the law is administered in an even-handed

manner. There is no warrant for according a stepmotherly

treatment when the ‘State’ is the applicant praying for

condonation of delay. In fact experience shows that on account

of an impersonal machinery (no one in-charge of the matter is

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-on-the-buck ethos,

delay on its part is less difficult to understand though more

difficult to approve. In any event, the State which represents the

collective cause of the community, does not deserve a litigantnon-grata status. The Courts therefore have to be informed with

the spirit and philosophy of the provision in the course of the

interpretation of the expression “sufficient cause”. So also the

same approach has to be evidenced in its application to matters

at hand with the end in view to do even-handed justice on merits

in preference to the approach which scuttles a decision on

merits..”

3. In view of the above decision of the Supreme Court, there is

no justification on the part of the authorities in not condoning

the delay in filing the appeal. Hence, the Writ Petition is allowed.

The impugned order confirming the order of the original

authority is set aside and the matter is remitted to the first

appellate authority/Commissioner of Customs and Central Excise

(Appeals-II), Trichy. The delay in filing the appeal is condoned.

The second respondent is directed to entertain the appeal and

number the same and decide the issue on merits and in

accordance with law, after affording reasonable opportunity of

hearing to both sides and dispose of the appeal within a period

of one month from the date of receipt of a copy of this order. If

the petitioner-Company fails to represent the matter for any

reason whatsoever, the second respondent is directed to pass

orders on merits based on the documents available on record.

No costs. W.P.M.P. is closed.”

3.6 Accordingly, I do not find any merits in this order of

Commissioner (Appeals) dismissing the appeal of the appellant

on grounds of limitation after dismissing his application for

condonation of delay. The matter needs to be remanded back to

Commissioner (Appeals) for decision on merits in appeal that

was filed by the appellant before him.

4. Appeal allowed and matter remanded back to Commissioner (Appeals) for decision on merits, to be decided within three months of date of receipt of this order.

(Dictated and pronounced in open court)

(SANJIV SRIVASTAVA)

MEMBER (TECHNICAL)