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2017 DIGILAW 254 (GUJ)

Commissioner of Customs v. VVF (India) Ltd.

2017-02-01

B.N.KARIA, M.R.SHAH

body2017
ORDER : M.R. Shah, J. 1. The present application under Section 5 of the Limitation Act has been preferred by the applicant-Commissioner of Customs, Kandla requesting to condone the delay of 502 days in preferring the Tax Appeal against the judgment and order passed by the learned Customs, Excise & Service Tax Appellate Tribunal, West Zonal Bench, Ahmedabad (hereinafter referred to as "CESTAT") dated 4-12-2014 [2015 (317) E.L.T. 561 (Tribunal)]. It is the case on behalf of the applicant that after the impugned judgment and order dated 4-12-2014 passed by the learned CESTAT, Revenue/Department submitted the rectification application, which came to be rejected by the learned CESTAT vide order dated 10-9-2015. Thereafter, the order passed on the rectification application came to be challenged by the Department by way of Tax Appeal No. 226/2016, which came to be dismissed by the Division Bench of this Court vide order dated 28-4-2016 and the Division Bench confirmed the order rejecting the rectification application. It is the case on behalf of the applicant that thereafter after obtaining appropriate approval from the appropriate authority by which it was decided to prefer appeal against the original order passed by the learned CESTAT dated 4-12-2014 thereafter the present appeal has been preferred against the impugned judgment and order passed by the learned CESTAT dated 4-12-2014. By the time, delay has occurred. Therefore, considering the aforesaid facts and circumstances of the case, it is requested to allow the present application and condone the delay in preferring the appeal. 2. Ms. Priyal Parikh, learned advocate appearing for M/s. Nanavati Associates has stated at the bar that M/s. Nanavati Associates has instructions to appear on behalf of the respondent. Ms. Parikh, learned advocate appearing on behalf of the respondent has vehemently opposed the present application by submitting that there is a huge delay of 502 days in preferring the appeal, and therefore, the delay may not be condoned. 3. Heard the learned advocates appearing on behalf of the respective parties at length. It is true that there is a delay of 502 days in preferring the appeal. However, it is required to be noted that after the impugned judgment and order passed by the learned CESTAT, Revenue/Department preferred rectification application before the learned CESTAT, which came to be rejected vide order dated 10-9-2015. It is true that there is a delay of 502 days in preferring the appeal. However, it is required to be noted that after the impugned judgment and order passed by the learned CESTAT, Revenue/Department preferred rectification application before the learned CESTAT, which came to be rejected vide order dated 10-9-2015. It is also required to be noted that thereafter the revenue/Department challenged the order dated 10-9-2015 rejecting the rectification application before this Court by way of Tax Appeal No. 226/2016, which came to be dismissed by the Division Bench of this Court vide order dated 28-4-2016. Thereafter, a decision has been taken to challenge the original order passed by the learned CESTAT dated 4-12-2014 after obtaining approval from the appropriate authority. Thereafter, the appeal along with the present application for condonation of delay has been preferred. Considering the aforesaid facts of the case, the delay caused in preferring the appeal has been sufficiently and properly explained. The Department was bona fidely prosecuting the rectification application and thereafter on rejection of the rectification application, appeal has been preferred challenging the original order passed by the learned CESTAT. Under the circumstances, it cannot be said that there was any deliberate delay on the part of the Revenue/Department in not preferring the appeal challenging the impugned judgment and order passed by the learned CESTAT. There does not seem to be any negligence on the part of the Department in not preferring the appeal within the period of limitation. The delay has been sufficiently explained. Under the circumstances, delay deserves to be condoned. In view of the above and for the reasons stated hereinabove, the present application succeeds and the delay caused in preferring the appeal is hereby condoned. Rule is made absolute accordingly. No order as to costs.