ST - COD - Vacancy in Govt departments cannot be reason for non-filing of appeals - reason stated is merely of bureaucratic red tape - appeal rejected: CESTAT
By TIOL News Service
MUMBAI, JULY 17, 2013: THE appellant is functioning under the Maharashtra State Electricity Board and is a Government of Maharashtra undertaking. Service Tax demands of Rs.1,19,533/- and Rs.1,48,469/- were confirmed against the appellant on the ground that the activity undertaken by the appellant in respect of supervision of the work undertaken was classifiable under the category of ‘Consulting Engineer's Service' and the demands were confirmed along with interest thereon.
The Commissioner(A) upheld the demand and rejected the appeal on 21/07/2011.
The appellant filed an appeal before the CESTAT but…but…the appeal was filed with a delay of 579 days.
The reasons for the delay are cited thus -
+ there was a vacancy in the position of Junior Manager (F&A) in the organization of the appellant during 01.07.2011 to 23.12.2011.
+ During 23.12.2011 to 31.07.2012 the Junior Manager looking into the legal affairs of the appellant did not have the requisite expert legal knowledge and therefore he did not take steps to challenge the order of the lower appellate authority.
+ Only in November, 2012, another Junior Manager (F&A) joined and this Junior Manager apparently had the requisite knowledge to appoint a counsel and hence the delay.
The Bench observed -
"4. The ground stated for the delay is not at all satisfactory to this Bench. As held by the hon'ble Apex Court in the case of N.Balakrishnan vs. M.Krishnamurthy - (2002-TIOL-737-SC-LMT) it is not the length of the delay but the adequacy of the explanation for the delay that is relevant criteria while considering the COD application. As per the explanation given, it is the vacancy of a particular position and ignorance of law by another person who was looking into the legal affairs which caused the delay. Ignorance of law is not an excuse. Vacancy in government departments are well known and this cannot be a reason for non-filing of appeals where statutory time limits have been laid down. The hon'ble apex Court in the case of Office of Chief Post Master General vs. Living Media India Ltd. - (2012-TIOL-123-SC-LMT) held that the delay cannot be condoned mechanically merely because government or its wing is a party before the Court. In the absence of plausible and acceptable explanation, government cannot plea that there was no gross negligence or deliberate inaction or lack of bona fide and liberal concession has to be adopted to advance substantial justice. Claim of impersonal machinery and inherited bureaucratic methodology of making several notes cannot be accepted in view of modern technologies being used and available.
5. If the appellant did not have the expertise they should have availed the services of an expert and there are enough number of counsels appointed by the Government for defending their cases. Therefore, the reason stated is merely of bureaucratic red tape. Therefore, we are not satisfied with the explanation given for the delay."
In fine, the COD applications were rejected and consequently the appeals as well as stay applications also met the same fate.
Same old story: It was only recently that we reported the case of Central Railway, Solapur vs. CCE, Pune-III - (2013-TIOL-842-CESTAT-MUM) wherein an eight month delay was also not condoned by the same Bench citing the aforesaid apex Court decisions. The only difference - one is owned and operated by the Government of India through the Ministry of Railways and the other is a Government of Maharashtra undertaking, but the difference ends there. Both are bureaucratically red-taped!
(See 2013-TIOL-1080-CESTAT-MUM)
