Condonation of Delay in filing appeal granted on basis of past record by imposing cost.

PJ-Case law-2013/14-1595

Case:-M/s ROBERT BOSCH ENGINEERING AND BUSINESS SOLUTIONS LTD Vs COMMISSIONER OF SERVICE TAX, BANGALORE

Citation:- 2013-TIOL-847-CESTAT-BANGALORE

Brief Facts:-These applications filed by the appellant seek condonation of the delay of the appeals. Three of the five appeals are delayed by 63 days and the rest delayed by 147 days.

Appellant’s Contention:-The learned consultant for the appellant reiterates the reason stated in the COD applications. It is submitted that, as soon as the orders of the Commissioner (Appeals) were received by the appellant, the officer concerned in the tax department of the company had emailed copies of the orders along with instructions to file appeals, to the authorised signatory, who is none other than the consultant who represents the appellant. It is submitted that those emails sent by the appellant were not received. It is submitted that there was some technical hitch between the appellant and the authorised signatory. It is submitted that, when this problem was detected, the authorised signatory started corresponding with the appellant from his personal email ID and such emails were received at the official email ID of the appellant. It is submitted that such emails sent by the authorised signatory to the official email ID of the appellant were first received by the latter on 22 April 2012. It is also submitted that the appellant was till then under the impression that the orders with instructions to file appeals had already been received by the authorised representative. It is submitted that the real problem was ultimately detected by the appellant only sometime in October 2012. Thereafter, remedial steps were taken and ultimately appeals were filed on 9.11.2012. The learned consultant prays for condonation of the delay of the appeals in view of the genuine technical problems encountered in the correspondence between the appellant and the authorised representative as also in view of the high stakes involved in these cases. In this connection, the learned consultant has referred to the Affidavit filed in support of the COD
applications.

Respondent’s Contentions:-The learned Deputy Commissioner (AR) submits that the appeals were filed in a casual manner and that there is no satisfactory explanation of the heavy delay involved in the process. According to him, the delay is not liable to be condoned on the facts and circumstances as stated by the appellant. In the event of the delay being condoned, the appellant should be required to pay costs.

Reasoning of Judgement:-After considering the submissions, we have not found satisfactory explanation of the heavy delay of the captioned appeals. The explanation is to the effect that the email communications sent by the appellant to their authorised representative were not received by the latter on account of technical problems and that, as soon as such problems were detected by the appellant, prompt action was taken to file the appeals. However, the queries put by the Bench regarding details have not received satisfactory response. The appellant has placed on record the printouts of some of the emails claimed to have been successfully sent by the appellant to the authorised representative. On a scrutiny of the records, we find that the first email of this kind was sent by the appellant in March 2012 and, when the technical hitch in the despatch was detected by the appellant, their authorised representative became aware of the earlier futile emails but no remedial action was taken till October 2012. Even according to the appellant, it was only in October 2012 that steps were initiated for filing the appeals which were ultimately filed on 9.11.2012. The heavy delay between April and October 2012 is yet to be explained. On these facts and circumstances, we have found the COD applications fit to be rejected.

However, certain submissions made by the learned consultant for the appellant cannot be ignored. He has submitted that the appellant-company has a fine record of having promptly filed appeals with this Tribunal and that this is the first instance of a delay. He has submitted that documentary evidence of the appellant having sent emails to their authorised representative promptly on receipt of the appellate Commissioner's orders is available and that the appellant cannot be non-suited in this case involving high stakes on the ground of delay. We have looked at these statements from a different angle and are of the view that such statements have to be entertained in an adequate manner. Therefore, we are inclined to entertain the COD applications and allow them on reasonable terms. All the COD applications are allowed subject to payment of costs of Rs.10,000/- (Rupees Ten thousand only) per appeal within four weeks from today. At this stage, we should also go on record that, when our inclination to impose costs was communicated to the learned consultant for the appellant, he has, in all fairness, respond agreeably.

It is also directed that the above deposits be made in the Legal Aid Fund controlled by the competent authority appointed by the Hon'ble High Court. The appellant should report compliance to this Tribunal on 20.3.2013.

Decision:-Condonation granted on cost.

Comment:-The analogy drawn from this case is that communication gap between the appellant and its authorised representative with respect to filing the appeal cannot be considered as a reasonable ground to condone the heavy delay in filing the appeals but considering the past good record of filing the appeals by the appellant in time, condonation was granted by imposing cost.

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PJ-Case law-2013/14-1595

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