ST - Delay cannot be attributed to introduction of new tax regime when fact is o-in-o was passed after nine months of GST implementation: CESTAT
By TIOL News Service
MUMBAI, MAR 06, 2019: REVENUE is in appeal against the order dated 26.03.2018 passed by the Commissioner of CEX and CGST, Mumbai Central.
An application has been filed by the Revenue seeking condonation of delay of 67 days in filing the appeal beyond the prescribed period of four months from the date of receipt of order by the Committee of Chief Commissioners.
The relevant dates leading to delay in filing the appeal are –
| Date of order-in-original, appealed against |
26.03.2018 |
| Date of receipt of order by Committee of Chief Commissioners |
25.04.2018 |
| Date when the order for review was passed u/s 35E(1) of CEA, 1944 |
23.08.2018 |
| Date of receipt of review order by Commissioner |
24.08.2018 |
| Date of filing the appeal before CESTAT |
30.10.2018 |
In his affidavit dated 10th January 2019, the Commissioner has explained the reasons for delay stating -
"4. I further say that the Appeal was filed on 30.10.2018 under verification of the Jurisdictional Commissioner of Mumbai Central CGST, against the impugned order OIO No 100/COMMR/(Dr.KNR)/CGST & CEX/MC/2017-18 dated 26.03.2018 along with an Misc Application for Condonation of Delay of 67 days. This delay of 67 days in filing the Appeal happened on account of post-GST restructuring of CBEC and difficulties faced with implementation of new tax. Moreover shortage of staff at Head Quarter & Division level and acute pressure of work related to filing of appeals during the months of September & October 2008 (2018). It is submitted that the delay was not on account of any negligence or inaction on the part of department.
5. I say that the delay caused in filing above appeal is for the reasons stated above and not malafide. I say that the Appellant has a very strong case on merits. I further say that grave prejudice would be caused to the Appellant if the delay in filing above Appeal is not condoned and the appeal is not heard on merits. Whereas prejudice of any nature a whatsoever would be caused to the Respondents as their right to defend the appeal would remain intact. I say that the delay caused in filing appeal is inadvertent and not deliberate. I say that balance of convenience lies in favour of the Appellant.
6. It is respectfully submitted that this Hon'ble Tribunal does take liberal and judicial approach, guided by paramount consideration of not depriving the litigant ordinarily of adjudication of its right on merit. It is further submitted that when substantial ad technical consideration are pitted against each other, cause of substantial justice deserve to be preferred. The Appellant has very good case on merits and is likely to succeed in appeal."
The CESTAT remarked that the casual approach of revenue is evident from the application of "Application for Condonation of Delay" which the Bench reproduced (as below):
It was further observed -
+ It is quite evident that the application has been filed without even specifying the period of delay sought to be condoned or without assigning any substantial reason for seeking such condonation.
+ The only reason that has been stated by the Appellant in their affidavit now filed is that the delay has occurred on account of the re-organization and re- structuring of the CBEC on account of introduction of GST. No other ground has been mentioned for seeking such condonation of delay.
+ It is matter of record that GST regime in the country was introduced with effect from 1st July 2017. Since then appellant revenue has undergone structural and organizational changes which are natural consequence of shift in the tax regime. However, whether the said changes were the cause of such delay or it was sheer negligence on the part of authorities in presenting the appeal.
+ Not even a iota of whisper in the application or the affidavit filed explaining how such change in regime has caused the delay in pursuing the appellate remedy in present case. Except for a sweeping statement of fact, that GST was under implementation, nothing has been stated.
+ GST, as stated earlier, was implemented with effect from 1st July 2017. In this case the order in original is dated 26.03.2018, i.e. nearly nine months after such implementation. This order has been received by the Committee of Chief Commissioners on 25.04.2018, i.e. nearly ten months after the date of implementation of the GST.
+ It is nowhere stated that after the date of order in original and date of receipt of order by the committee of Chief Commissioners there has been organizational and structural changes in the scheme of things. It is not even stated that any file was transferred from one jurisdiction to any other jurisdiction after the said dates.
Refusing to attribute implementation of GST as the reason for the delay in filing the appeal and concluding that no sufficient cause has been shown, as required in terms of s.86(5) of the FA, 1994, the CESTAT dismissed the COD application.
The appeal was accordingly disposed of.
In passing:
++ 2017-TIOL-973-CESTAT-MUM. Held: 128 days delay (by Revenue) in filing cross objection condoned; reason given by AR that delay is due to GST training of officers is acceptable.
++ 2017-TIOL-3424-CESTAT-MUM. Held: 12 days delay in filing appeal (by Revenue) on the ground that staff was busy in GST training; reason satisfactory, delay condoned.
(See 2019-TIOL-696-CESTAT-MUM)
