2018 (12) TMI 337 – CESTAT MUMBAI – TMI – Condonation of delay of 215 days in filing appeal – no proper justification given for such delay – difference of opinion – Held that:- As there is difference of opinion, matter is referred to Third Member for resolving the Difference of Opinion on the issue:
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Whether the delay has to be condoned subject to imposition of cost of ₹ 2000/- as held by the Member (Judicial) or the Condonation of Delay has to be rejected as the appellant has not given plausible and just explanation explaining the delay in filing the appeal, and consequently, the appeal is to be rejected as barred by limitation. – Application No. E/COD/86245/2018 in Appeal No. E/88107/2018 – M/86182/2018 – Dated:- 11-10-2018 – Mrs. Archana Wadhwa, Member (Judicial) And Mr. Sanjiv Srivastava, Member (Technical) Shri Hemant Suchak, Asstt. Manager (Comm) for the appellant Shri D.S. Chauhan, Supdt. (AR) for the respondent ORDER Per: Archana Wadhwa The delay in filing the prese
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at though … this court has been making a justifiable liberal approach in matters instituted in this Court, but the message does not appear to have percolated to all the other Courts in the hierarchy , the Hon ble Supreme Court observed that Every day's delay must be explained does not mean that a pedantic approach should be made. 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 and in fact he runs a serious risk. Similarly, in the case of Namnath Sao Alias Ramnath Sahu & Ors. Reported in (2002) 3 Supreme Court Cases 195, the court observed that the expression "sufficient cause" should receive a liberal construction so as to advance substantial justice when no negligence or inaction or want of bona fides is imputable to a party. The Hon'ble Supreme Court further observed that one thing is clear that the Courts should not
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pragmatism in justice oriented approach. In fact, the Jurisdictional High Court of this bench, the Hon ble Bombay High Court in the case of Chetan Singh Rathod Vs. CC reported in 2015 (323) ELT 685 (Bom.) has condoned the delay refused by the Tribunal by observing that in so far as possible the party should be given an opportunity to contest the matter on merits unless the conduct is such that the delay ought not to be condoned. 3. Though we note that the e:ppellants have not given the details as regards the leaving of job by the concerned person, subsequent procurement of the copy from the Range office but keeping in view that the filing of appeal involves the right of the assessee to challenge the impugned order before the higher appellate forum and appreciating the fact the amount involved is only of ₹ 2.50 lakhs approx, as also by appreciating the prima facie merits of the case, and keeping in view the various Supreme Court decisions referred supra laying down that such refus
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as held by the Hon ble Supreme Court in number of decisions, I am not in agreement with the above order. 6. The ground given is, even if the person left the job without giving any detail, the detail as to person, as to why the appeal has been delayed. There is no explanation on day today basis that delay was on this count. In the absence of any possible explanation explaining day today delay, I am not in a position to agree with the Condonation of Delay of 215 day in filing the appeal. No affidavit has been filed in support of the contentions raised in the application for Condonation of Delay. 7. The appeal is a right but circumscribed certain condition. It is not an absolute right for the assessee. Appeal has to be filed within the prescribed period of limitation. In case of delay, appellant has to explain and thereafter only a Condonation of Delay can be allowed. In absence of plausible and just cause of delay, supported by necessary affidavits and document COD application should be
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