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2003 DIGILAW 1216 (PNJ)

Triveni Castings (P) Ltd. v. Sales Tax Tribunal

2003-08-29

JASBIR SINGH, N.K.SUD

body2003
Judgment Jasbir Singh, J. 1. Petitioner has filed this writ petition under Articles 226/227 of the Constitution of India praying for issuance of a writ of certiorari quashing order dated February 16, 2001 (annexure P6) and order dated February 13, 2002 (annexure P9), vide which his appeals were dismissed by the Joint Excise and Taxation Commissioner (Appeals), Ambala, and the Sales Tax Tribunal-1, Haryana at Chandigarh, respectively. 2. Petitioner is a company, registered under the provisions of the Himachal Pradesh General Sales Tax Act, 1968, and the Central Sales Tax Act, 1956, and is engaged in the business of manufacturing steel ingots and having its factory at Parwanoo in Himachal Pradesh. On April 19, 2000, petitioner had sent certain consignments from its factory at Parwanoo to M/s. Sandeep Steels, G.T. Road, Samalkha (Haryana) against different bills. Goods were sent through two vehicles. Petitioner also obtained forms ST-26A from multi purpose barrier existing on the outskirts of Parwanoo. Obtaining of such a form was mandatory under the provisions of Himachal Pradesh General Sales Tax Act. On April 19, 2000, while entering Haryana, vehicles carrying goods of the petitioner were intercepted and detained by the Excise and Taxation Officer (Enforcement), Panchkula. On receipt of intimation in that regard, a representative of the petitioner appeared before the authorities and explained the entire position, showed the necessary documents and clarified that there was no intention to evade any tax. However, the officer concerned did not agree, penalty was imposed and directed that payment towards penalty be made. Representative of the petitioner was also made to sign some blank papers under coercion. Petitioner deposited Rs. 75,000 in cash towards penalty (Rs. 38,000 + Rs. 37,000) and got his vehicles released. No order imposing penalty was supplied to the representative of the petitioner. 3. Petitioner then moved applications (annexures P2 and P3) through his counsel to the Deputy Excise and Taxation Commissioner with a prayer that he be supplied a copy of order, vide which penalty was imposed. However, no action was taken. After waiting for some time, petitioner filed two appeals without annexing any copy of the orders vide which penalty was imposed. By a common order dated February 16, 2001, both the appeals were dismissed being time-barred, having been filed beyond period of limitation. 4. However, no action was taken. After waiting for some time, petitioner filed two appeals without annexing any copy of the orders vide which penalty was imposed. By a common order dated February 16, 2001, both the appeals were dismissed being time-barred, having been filed beyond period of limitation. 4. Against aforementioned order, petitioner filed two appeals before the Sales Tax Tribunal as is permissible under Section 39 of the Haryana General Sales Tax Act, 1973. In grounds of appeals, it was specifically alleged before the first appellate court as also before the Tribunal that certified copy of the orders was not supplied to the petitioner when order was passed or even subsequent thereto. Petitioners applications annexures P2 and P3 for supply of certified copies were still pending when appeals were filed before the court below. Both the applications were moved on May 6, 2000, i.e., within the period of limitation. However, without noticing any of the contentions raised by the petitioner, Sales Tax Tribunal also, dismissed both the appeals vide order dated February 13, 2002 (annexure P9). Hence this writ petition. 5. It has been contended by the counsel for the petitioner that the petitioner had been disputing his liability to pay the penalty. Goods were being transported under valid documents, which were shown to the officer concerned at the time when vehicles were intercepted. Penalty imposed vide order dated April 19, 2000 was not justified. Under these circumstances, matter was required to be decided on merits and while dismissing the appeals as barred by limitation, injustice had been done to the petitioner. Counsel further contended that no certified copy of the orders dated April 19, 2000, was supplied to the representative of the petitioner on that day. Petitioner moved two applications on May 6, 2000 with a prayer that it be supplied certified copy of the orders vide which penalty was imposed. No action was taken on those applications. Counsel for the petitioner argued that as per the provisions of Section 39(5) of the Haryana General Sales Tax Act, 1973 , appeal could have been filed within 60 days from the date of the impugned order and that the time spent in obtaining certified copy of the order was liable to be excluded while computing the period of limitation. Counsel for the petitioner argued that as per the provisions of Section 39(5) of the Haryana General Sales Tax Act, 1973 , appeal could have been filed within 60 days from the date of the impugned order and that the time spent in obtaining certified copy of the order was liable to be excluded while computing the period of limitation. Since its applications dated May 6, 2000 (annexures P 2 and P 3) were still pending, appellate authority and the Tribunal were not justified in dismissing his appeals. 6. Upon notice, respondents put up appearance and filed written statement, wherein it has specifically been pleaded that copy of the order dated April 19, 2000, was supplied to the representative of the petitioner on that very date and since the petitioner has failed to file appeals within the stipulated period, appeals were rightly dismissed by the appellate authority and the Tribunal. However, in reply to averments of the petitioner that it had moved two applications dated May 6, 2000 (annexures P2 and P3) for supply of certified copy of the order dated April 19, 2000, following plea was taken in para 6 of the written statement : "6. In reply to para 6 of the writ petition, it is submitted that respondent No. 3 supplied copy of order on April 19, 2002 to Sh. Suresh Kumar as stated above, hence no further action was required on the application annexures P2 and P3. Averments made in preceding para are reiterated." 7. Counsel for the parties heard. 8. It is apparent from the records that two vehicles carrying goods of the petitioner were intercepted and detained by the authorities on April 19, 2000. Representative of the petitioner reached at the spot and tried to show that there was no intention or attempt, to evade tax. However, penalty to the tune of Rs. 75,000 (Rs. 38,000 + Rs. 37,000) was imposed by the Excise and Taxation Officer (Enforcement), Panchkula. As per contention of the petitioner, no copy of the order dated April 19, 2000, was supplied to its representative, which is being disputed by the respondents. However, penalty to the tune of Rs. 75,000 (Rs. 38,000 + Rs. 37,000) was imposed by the Excise and Taxation Officer (Enforcement), Panchkula. As per contention of the petitioner, no copy of the order dated April 19, 2000, was supplied to its representative, which is being disputed by the respondents. Be that as it may, it is apparent from the records that on May 6, 2000, petitioner moved two applications to the Deputy Excise and Taxation Commissioner at Panchkula with a prayer that it be supplied certified copy of the orders vide which penalty was imposed on April 19, 2000. Those applications were sent through its counsel, by registered post. In written statement, receipt of those applications is not disputed. However, it has been pleaded that since copy had already been supplied to the petitioner on April 19, 2000, no action was required to be taken on those applications. 9. As per provisions of Section 39 of the Haryana General Sales Tax Act, 1973 , against order dated April 19, 2000, petitioner was entitled to file an appeal within sixty days from the date of passing of order. Proviso to Sub-section (5) of Section 39 of the said Act further provides that the time spent in obtaining certified copy of the order should be excluded in computing the period of limitation of 60 days. 10. In this case, admittedly, applications annexures P2 and P3 were moved by the petitioner on May 6, 2000, i.e., within the period of limitation of sixty days and those were still pending as no action was taken by the department. Under these circumstances, dismissal of appeals, being barred by limitation, was not justified. Counsel for the petitioner relied upon a judgment of the honourable Supreme Court in Commissioner of Sales Tax, U.P. v. Madan Lal Das & Sons, Bareilly [1976] 38 STC 543, to support his contentions as referred to above. In that judgment, their Lordships of the Supreme Court in a similar situation under the U.P. Sales Tax Act, were dealing with a following question : "Whether the time taken by the dealer in obtaining another copy of the impugned appellate order could be excluded for the purpose of limitation for filing revision under Section 10(1) of the U.P. Sales Tax Act when one copy of the appellate order was served upon the dealer under the provisions of the Act ?" 11. After referring to the facts of that case and taking into consideration provisions of the Limitation Act, 1963, and various judicial pronouncements, their Lordships of the Supreme Court observed as under : "In the case of State of Uttar Pradesh v. Maharaja Narain (1968) 2 SCR 842 the appellant obtained three copies of the order appealed against by applying on three different dates for the copy. The appellant filed along with the memorandum of appeal that copy which had taken the maximum time for its preparation and sought to exclude such maximum time in computing the period of limitation for filing the appeal. This Court, while holding the appeal to be within time, observed that the expression time requisite in Section 12(2) of the Limitation Act cannot be understood as the time absolutely necessary for obtaining the copy of the order and that what is deductible under Section 12(2) is not the minimum time within which a copy of the order appealed against could have been obtained. If that be the position of law in a case where there was no allegation of the loss of any copy, a fortiori it would follow that whereas in the present case the copy served upon a party is lost and there is no alternative for that party except to apply for a fresh copy in order to be in a position to file revision petition, the time spent in obtaining that copy would necessarily have to be excluded under Section 12(2) of the Limitation Act, 1963." 12. The case in hand is squarely covered by the ratio of judgment of the honourable Supreme Court in Madan Lals case [1976] 38 STC 543. As such, it can safely be concluded that both, Joint Excise and Taxation Commissioner (Appeals) and Sales Tax Tribunal were not justified in dismissing the appeals filed by the petitioner vide orders annexures P6 and P9 respectively. In this case, limitation could have been condoned on the basis of grounds taken by the petitioner. This Court is satisfied that the petitioner had furnished sufficient cause and the reasons, on the basis of which limitation was required to be condoned by the appellate authorities. 13. In this case, limitation could have been condoned on the basis of grounds taken by the petitioner. This Court is satisfied that the petitioner had furnished sufficient cause and the reasons, on the basis of which limitation was required to be condoned by the appellate authorities. 13. Their Lordships of the Supreme Court in N. Balakrishnan v. M. Krishnamurthy (1998) 7 SCC 123, while explaining sufficient cause for condonation of delay had opined that while condoning delay, length of delay is immaterial, acceptability of the explanation is the only criterion. It was further opined as under: "10. The primary function of a court is to adjudicate the dispute between the parties and to advance substantial justice. The time-limit fixed for approaching the court in different situations is not because on the expiry of such time a bad cause would transform into a good cause. 11. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. The law of limitation fixes a life span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During the efflux of time, newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. The law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium (it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the rights of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time. 12. A court knows that refusal to condone delay would result in foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the court is always deliberate. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time. 12. A court knows that refusal to condone delay would result in foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the court is always deliberate. This Court has held that the words sufficient cause under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice vide Shakuntala Devi Jain v. Kuntal Kumari AIR 1969 SC 575 and State of West Bengal v. Administrator Howrah Municipality AIR 1972 SC 749. 13. It must be remembered that in every case of delay there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put-forth as part of a dilatory strategy, the court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time, then the court should lean against acceptance of the explanation. While condoning the delay, the court should not forget the opposite party altogether. It must be borne in mind that he is a loser and he too would have incurred quite a large litigation expenses. It would be a salutary guideline that when Courts condone the delay due to laches on the part of the applicant, the court shall compensate the opposite party for his loss." 14. In the case before this Court, we are satisfied that there is no mala fide on the part of the petitioner in not filing appeals within the stipulated period. Its applications to get certified copies were still pending when appeals were dismissed being barred by limitation. What to talk of accepting explanation of the petitioner, it was not even noted by the authorities below. 15. Under these circumstances and in view of the judgments of the honourable Supreme Court referred to above, petitioner is entitled to get its appeals decided on merit. Consequently, writ petition is allowed and impugned orders annexures P6 and P9 are quashed. The matter is remitted to the Joint Excise and Taxation Commissioner (Appeals) at Ambala for fresh decision on merits. No order as to costs.