By TIOL News Service

CHANDIGARH, JUNE 01, 2014: THE appellant provided services under material handling contract and also provided services for maintenance of Ash pond and maintenance of fire services and operation/upkeep of compressed air filling stations. A Service Tax demand of Rs.2.89 lakhs was raised and confirmed by the adjudicating authority vide his order dated 31.01.2011.

After almost two years, on 07.01.2013, an appeal was filed before the Commissioner(A) along with an application for condoning the delay. The appeal was rejected as time barred.

The Tribunal upheld this order and, therefore, the appellant is before the High Court claiming the following substantial questions of law:-

+ Whether the order passed by the ld. CESTAT holding the appeal of the appellant is time barred, can be stated to be legal and correct as per facts on records?

+ Whether Section 5 of Limitation Act is applicable in the present case or not?

+ Whether mere technicalities can come in the way of Administration of Justice?

+ Whether a good case on merit can be ignored only on the point of delay, which is bonafide?

+ Whether manifest injustice has been caused to the appellant or not?

+ Whether a casual approach is required to be taken on delay in the cases like present one?

It is submitted by the appellant that the proprietor was under medical treatment and so could not attend and pursue the matter and, therefore, the delay was unintentional and due to the circumstances beyond the control of the appellant.

The High Court adverted to the apex court decisions in Oriental Aroma Chemical Industries Ltd. v. Gujarat Industrial Development Corporation and another, (2010) 5 SCC 459  & R.B. Ramlingam v. R.B. Bhavaneshwari 2009(1) RCR (Civil) 892  and observed that t he purpose behind enacting law of limitation is not to destroy the rights of the parties but to see that the uncertainty should not prevail for unlimited period; that u/s 5 of the Limitation Act, 1963 the courts are empowered to condone the delay where a party approaching the court belatedly shows ‘sufficient cause' for not availing the remedy within the prescribed period; that the meaning to be assigned to the expression “sufficient cause” should be such so as to do substantial justice between the parties; that the existence of sufficient cause depends upon facts of each case and no hard and fast rule can be applied.

It was also observed that the apex court in the said cases had noticed that the courts should adopt liberal approach where delay is of short period whereas the proof required should be strict where the delay is inordinate; that the applicant/petitioner is required to establish that inspite of acting with due care and caution, the delay had occurred due to circumstances beyond his control and was inevitable.

Noting that in the case on hand, the plea made by the appellant does not stand substantiated inasmuch as there has been an inordinate delay of more than 20 and 24 months in filing the appeals, the High Court held that there was no sufficient cause for condoning the delay.

The appeals were dismissed.

(See 2014-TIOL-875-HC-P&H-ST)