HIGH COURT OF MADHYA PRADESH
Commissioner of Customs and Central Excise
W.P. NO. 6761 OF 2012
MAY 10, 2012
1. By this petition, the petitioner has essentially prayed for quashing of order dated 14-3-2012, Annexure-P1, passed by respondent No. 2 Customs, Excise and Service Tax Appellate Tribunal.
2. The petitioner is a proprietorship firm and has cable network in Itarsi, District, Hoshangabad. The Additional Commissioner, Customs and Central Excise, vide order dated 16-12-2008 assessed the petitioner for the period 2002-03 to 2006-07 and determined service tax amounting to Rs. 15,53,087/- against it. In addition to this, the Additional Commissioner also imposed penalties under sections 76, 77 and 78 of the Finance Act. Aggrieved, the petitioner filed an appeal before respondent No. 1 Commissioner, Customs and Central Excise, which was partly allowed vide order dated 31-8-2009. By this order the penalties imposed on the petitioner were confirmed and only marginal relief of Rs. 1,29,539/- was granted. The petitioner was served with the order on 1-9-2009.
3. Dissatisfied with the relief granted, the petitioner has filed an appeal along with an application for stay before respondent No. 2. Since a delay of 259 days in filing the appeal was reported, the petitioner also filed an application for condonation of delay. In the application for condonation of delay, the petitioner stated that matter was handed over to Shri Arup K. Das, Advocate, for the purposes of filing the appeal who, due to problems in his matrimonial life, did not pay attention as a result of which the appeal could not be filed within the prescribed period of limitation. The petitioner also stated that Arup K. Das ultimately returned the papers to the petitioner and the appeal was filed through another counsel. The petitioner further submitted that delay was due to justice. The application was also supported by the affidavit of Shri Arup K. Das.
4. Respondent No. 2, during the course of hearing on the application for condonation of delay, questioned the petitioner as to how much amount will it deposit as a condition for allowing the application and then by the impugned order dated 14-3-2012 directed that on petitioner’s depositing 50% of the amount of tax, the delay shall be treated as condoned. By the same order, respondent No. 2 also finally disposed of the petitioner’s application for stay.
5. It is argued on behalf of the petitioner that, for the purposes of deciding an application for condonation of delay, the only question requires for consideration is whether the petitioner was prevented by a sufficient cause from filing the appeal within the prescribed period of limitation. It has also been argued that condition of depositing 50% of the tax by the petitioner for condoning the delay is contrary to law. According to the petitioner, respondent No. 2 was wholly wrong in mixing up the issue of condonation of delay along with the relief for stay. The learned counsel for respondents, in reply, defended the order passed by respondent No. 2.
6. There is no legal provision which provides for condoning the delay in filing the appeal on a condition of depositing 50% of the tax amount. The delay in filing the appeal is condoned or refused depending upon the sufficiency of cause for delay. If the party is found to be prevented by a sufficient cause to the satisfaction of the Appellate Authority/Tribunal, the delay is condoned and if not found to be prevented by a sufficient cause, the delay is not condoned. Respondent No. 2, therefore, ought to have decided the petitioner’s application for condonation of delay only on the ground whether it was prevented by a sufficient cause in filing the appeal. The condition of depositing 50% of the tax amount for condoning the delay is apparently illegal. Respondent No. 2 ought not to have mixed this issue with the application separately filed for stay.
7. We accordingly quash the impugned order with a direction to respondent No. 2 to decide the petitioner’s application for condonation of delay on its merit without insisting to deposit 50% of the tax amount. Likewise, respondent No. 2 will also pass fresh order on the application for stay filed if it ultimately admits the appeal.
8. The petition is allowed. No order as to costs.
9. Certified copy as per rules.