VKJ Latest News Update

VKJ Law Offices of Vinay K. Jain Advocates & Solicitors

CX – Appellants have been very casual and negligent in not filing the appeal expeditiously even after coming to know of the impugned order – delay of 506 days not condoned: CESTAT

2019-TIOL-2349-CESTAT-BANG

IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
REGIONAL BENCH, BANGALORE
COURT NO. 1

Application Nos. E/COD/20083/2019, E/COD/20084/2019 in
E/20138/2019-SM, E/20139/2019-SM
Appeal Nos. E/20138/2019-SM, E/20139/2019-SM

Arising out of Order-in-Appeal No. BLR-EXCUS-002-APP-107-108-2017, Dated: 26.05.2017
Passed by Commissioner of Central Tax , BANGALORE LTU

Date of Hearing: 09.04.2019
Date of Decision: 09.04.2019

GIVAUDAN INDIA PVT LTD
PLOT NO 25-26 -46 II PHASE JIGANI INDUSTRIAL
AREA ANEKAL TALUK BANGALORE-560105
KARNATAKA

Vs

COMMISSIONER OF CENTRAL TAX, BANGALURU SOUTH
COMMISSIONERATE 5TH FLOOR, C.R. BUILDINGS
PB NO-5400, QUEENS ROAD
BANGALORE – 560001 KARNATAKA

Appellant Rep by: Shri J S Bhanumurthy, Adv.
Respondent Rep by: None

CORAM: S S Garg, Member (J)

CX – Appellant has filed two COD applications and two appeals against the impugned order – the COD applications have been filed seeking condonation of delay of 506 days in filing the appeals.

HELD: Appellant, as per their own averments in the applications, received the copy of the impugned order in the first week of June 2017 by the security staff of the appellant but it was not handed over to the employee concerneddealing with Central Excise cases – further, as per the averments in the applications, appellant came to know about the impugned order in November/December 2018 and thereafter filed the appeal in February 2019 after the delay of around 3 months which was not sufficiently explained with cogent and convincing reasons – further, in the present case, the appellants have been very casual and negligent in not filing the appeal expeditiously even after coming to know of the impugned order in November / December 2018 – consequently, no sufficient reasons found for condoning such an inordinate delay of 506 days – in view of this, the COD applications are dismissed – consequently, both the appeals are also dismissed : CESTAT [para 6]

COD applications/Appeals dismissed

Case laws cited:

Katiji – 2002-TIOL-444-SC-LMT… Para 4

State of Nagaland Vs. Lipok AO – 2005-TIOL-185-SC-LMT… Para 4

Navilkal Tea Factory Vs. CEGAT [1995(79) ELT 415 (Mad.)]… Para 5

Sushila Parmar International P. Ltd. Vs. CC(Port-Export), Chennai [2018(363) ELT 855 (Tri. Chennai)]… Para 5

FINAL ORDER NOS. 20347-20348/2019

Per: S S Garg:

The appellant has filed these two COD applications and two appeals against the Order-in-Appeal No.107 & 108/2017/LTU dt. 26/05/2017. The COD applications have been filed seeking condonation of delay of 506 days in filing the appeals.

2. The applicant/appellant has averred in the COD application that the impugned Order-in-Appeal dt. 26/05/2017 appears to have been delivered in the factory during the first week of June, 2017 and the last date for filing an appeal against the said order would be around 10/09/2017 which is three months from the date of receipt of the order as per Section 35B(3) of the Central Excise Act, 1944 whereas the present appeals have been filed on 05/02/2019 with a delay of 506 days. The applicant/appellant has submitted that the delay in filing the present appeals was caused on account of the following reasons:-

i. The order of the Commissioner(Appeals) appears to have been sent through post to the appellant in the first week of June 2017. It appears that order has been received by the security who receive the courier and pass on the documents to the concerned employee.

ii. However, it appears that the said order has not been brought to the notice of the staff handling Central Excise / Service Tax issues.

iii. Further copy of the order was not sent by the office of the Commissioner(Appeals) to the consultant who appeared in the said matter.

iv. Therefore, the management of the company was not aware of the passing of the said orders.

v. Further, with introduction of GST w.e.f. 01/07/2017, the jurisdictions of the Central Excise officers were changed and the appellant which was under LTU jurisdiction was shifted over to regular jurisdiction.

vi. Only after the enquiry from the Central Tax Department of the current jurisdiction during the month of November-December 2018, seeking the status of the show cause notice proceedings, the appellant came to know about the order being passed. After that, the appellant tracked the order passed on the information obtained from the department.

3. Heard both sides and perused records.

4. Learned counsel for the appellant submitted that the delay in filing the appeals was not deliberate and intentional but on account of the reasons cited supra. He further submitted that the staff handling the Excise matter did not bring it to the notice of the management regarding the receipt of the impugned order and it came to the notice of the management only during the month of November/December, 2018, when the Department enquired from the appellant. He further submitted that in condoning the delay, a liberal approach should be adopted as held by the Hon’ble Supreme Court in the case of Katiji [1987(29) ELT 185 (SC)] = 2002-TIOL-444-SC-LMT and in the case of State of Nagaland Vs. Lipok AO [2005(183) ELT 337 (SC)] = 2005-TIOL-185-SC-LMT . He further submitted that the appellant has a very strong case on merit which is also to be considered for the purpose of condoning the delay in filing the present appeals. The applicant has also filed an affidavit in support of the reasons given in the applications.

5. On the other hand, the learned AR contested the applications on the ground that the reasons given by the appellant in seeking condonation of such an inordinate delay of 506 days are not convincing. He further submitted that as per the averments in the applications, the applicant has received the impugned order in June 2017 but the impugned order was misplaced by their staff. He further submitted that appellant came to know about the impugned order somewhere in November / December 2018 and thereafter they took steps to file the present appeal which was filed on 05/02/2019 after a delay of around 3 months. He further submitted that the applicant has not given the exact date on which they came to know about the impugned order in the months of November or December 2018. In support of his submissions, the learned AR relied upon the following decisions:-

i. Navilkal Tea Factory Vs. CEGAT [1995(79) ELT 415 (Mad.)]

ii. Sushila Parmar International P. Ltd. Vs. CC(Port-Export), Chennai [2018(363) ELT 855 (Tri. Chennai)]

6. After considering the submissions of both parties and perusal of the records, I find that in the present case, there is an inordinate delay of 506 days in filing these two appals. Further I find that the appellant as per their own averments in the applications received the copy of the impugned order in the first week of June 2017 by the security staff of the appellant but it was not handed over to the concerned employee dealing with Central Excise cases. Further I find that as per the averments in the applications, appellant came to know about the impugned order in November / December 2018 and thereafter filed the appeal in February 2019 after the delay of around 3 months which was not sufficiently explained with cogent and convincing reasons. Further I find that in the present case, the appellants have been very casual and negligent in not filing the appeal expeditiously even after coming to know of the impugned order in November / December 2018. Consequently, I do not find sufficient reasons for condoning such an inordinate delay of 506 days. In view of this, the COD applications are dismissed. Consequently, both the appeals are also dismissed.

(Operative portion of the Order was pronounced in Open Court on 09.04.2019)

Leave a Reply

Close Menu
%d bloggers like this: