Inordinate Delay in filing Revisions/Appeals by Government not to be condoned henceforth
It is common that there is inordinate delay in filing Revisions/Appeals by the various functionaries of the Government. The Government functionaries have been harbouring a wrong notion that condonation of delay is a matter of course and in seeking such condonation the State can claim preferential or special treatment. It is true that Courts have always being taking a broad and liberal view so as to advance substantial justice instead of terminating a proceeding on a technical ground like limitation. However, recently the Apex Court has considered this anomaly and ruled that red tapism within the department, slow movement of files, impersonal machinery, bureaucratic methodology in making decisions are no longer acceptable as 'Sufficient Cause' for condonation of delay. The Apex Court has ruled that negligence of the State cannot be rewarded by mechanically condoning the delay u/s 5 of the Limitation Act. The Apex Court in the case of Postmaster General v. Living Media India Ltd (2012) 3 SCC 563 held thus:
" It is not in dispute that the person(s) concerned were well aware or conversant with the issues involved including the prescribed period of limitation for taking up the matter by way of filing a special leave petition in this Court. They cannot claim that they have a separate period of limitation when the Department was possessed with competent persons familiar with court proceedings. In the absence of plausible and acceptable explanation, we are posing a question why the delay is to be condoned mechanically merely because the Government or a wing of the Government is a party before us. Though we are conscious of the fact that in a matter of condonation of delay when there was no gross negligence or deliberate inaction or lack of bona fides, a liberal concession has to be adopted to advance substantial justice, we are of the view that in the facts and circumstances, the Department cannot take advantage of various earlier decisions. The claim on account of impersonal machinery and inherited bureaucratic methodology of making several notes cannot be accepted in view of the modern technologies being used and available. The law of limitation undoubtedly binds everybody, including the Government.
In our view, it is the right time to inform all the government bodies, their agencies and instrumentalities that unless they have reasonable and acceptable explanation for the delay and there was bona fide effort, there is no need to accept the usual explanation that the file was kept pending for several months/years due to considerable degree of procedural red tape in the process. The government departments are under a special obligation to ensure that they perform their duties with diligence and commitment. Condonation of delay is an exception and should not be used as an anticipated benefit for the government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few." (Emphasis supplied)
In a recent case of Amalendu Kumar Bera v. State of West Bengal (2013) 4 SCC 52, the Apex Court once again dealt strictly with this issue and held thus:
" True it is, that courts should always take liberal approach in the matter of condonation of delay, particularly when the appellant is the State but in a case where there are serious laches and negligence on the part of the State in challenging the decree passed in the suit and affirmed in appeal, the State cannot be allowed to wait to file objection under Section 47 till the decreeholder puts the decree in execution. … Merely because the respondent is the State, delay in filing the appeal or revision cannot and shall not be mechanically considered and in the absence of "sufficient cause" delay shall not be condoned." (Emphasis supplied)
It would be trite to refer to the case of Union of India vs Nripen Sharma AIR 2011 SC 1237 on the issue of inordinate delay. The Apex Court held thus:
"We have also gone through the condonation of delay application which was filed in the High Court. In our considered view, the High Court was fully justified in dismissing the appeal on the ground of delay because no sufficient cause was shown for condoning the delay.
The appellant has preferred this appeal against the final judgment dated 10.09.2007 before this Court. This appeal is also barred by limitation of 114 days. There is no satisfactory explanation for condonation of delay before this Court also.
The Union of India ought to have been careful particularly in filing this Civil Appeal because the Division Bench, by the impugned order, has dismissed the appeal before it on the ground of delay. It is a matter of deep anguish and distress that majority of the matters filed by the Union of India are hopelessly barred by limitation and no satisfactory explanations exist for condoning inordinate delay in filing those cases.
On consideration of the totality of the facts and circumstances, we are constrained to dismiss this appeal on the ground of delay." (Emphasis supplied)
In cases of Trade Tax/Vat, there is a common practice of Delay in filing Revisions against the orders of the Tribunals. The delay in filing Revision in the Allahabad High Court against the order of the Tribunal in the case of S/S Assotech Realty Pvt. Ltd., a leading case for imposition of Works Contract Tax, was delayed by more than 14 months for reasons not known. The agony is that the advocates of the assessees do not fight the application for condonation of delay vehemently in the court. Probably, they too have the same misconception that the Courts would mechanically condone the delay of the State functionaries.
There can be no plausible, satisfactory and appealing explanation of inordinate delays by the Government Functionaries in filing of Revision/Appeals before the Courts. With the aforementioned precedents of the Apex Court, binding under Article 141 of the Constitution, when placed before the Court, it would not be easy henceforth for the Government Departments to get their inordinate delays condoned u/s 5 of the Limitation Act.
(Author- Inder Chand Jain, Agra, Mobile:9319215672, Email: inderjain2007@rediffmail.com)
Facilitating transaction in Mutual Fund schemes through Stock Exchange Infrastructure
CIRCULAR No. CIR/MRD/DSA/33/2014, Dated- December 09, 2014
Subject : Facilitating transaction in Mutual Fund schemes through the Stock Exchange Infrastructure.
1. SEBI vide circular no. CIR/MRD/DSA/32/2013 dated October 04, 2013 had permitted Mutual Fund Distributors to use recognised stock exchanges' infrastructure to purchase and redeem mutual fund units directly from Mutual Fund/Asset Management Companies on behalf of their clients.
2. Paragraph 5 of the aforesaid circular is as under
"The MF distributors shall not handle payout and pay in of funds as well as units on behalf of investor. The recognised stock exchange shall put necessary system in place to ensure that pay in will be directly received by recognised clearing corporation and payout will be directly made to investor account. In the same manner, units shall be credited and debited directly from the demat account of investors".
3. In this regard, in order to broad base the reach of this platform, it is decided to permit non demat transactions also in the Mutual fund through stock exchange platform.
4. The other provisions of the above mentioned circular remain unchanged.
5. This circular is being issued in exercise of powers conferred under Section 11 of the Securities and Exchange Board of India Act, 1992 to protect the interests of investors in securities and to promote the development of, and to regulate the securities market.
6. This Circular is also available on SEBI website at www.sebi.gov.in Yours faithfully,
Sunil Kadam
General Manager
Email: sunilk@sebi.gov.in
General Manager
Email: sunilk@sebi.gov.in
Ministry may borrow female artists from another Ministry?
Central Civil Services Cultural and Sports Board is organizing the Inter-Ministry Music, Dance and Short Play competition 2013-14 from 27th to 30th January, 2015 at C.S.O.I Auditorium, Vinay Marg, New Delhi and it has issued Circular No. No. 12/1/2013-14-CCSCSB Dated 08.12.2014 in which it has issued Conduct Rules for Government Employees and Conditions for Artists to be deployed at Function. Circular says that Government Employees can dance in function but they have to abide conduct rules. Some of the interesting conditions are as follows :-
CONDITIONS FOR ARTISTS
14. All Male artists in a play should necessarily be amateurs and working in Offices of the Central Government located at Delhi/New Delhi eligible to participate in the competition.
15. Lady artists may be amateurs working in a Central Government Offices at Delhi/New Delhi or the family members of the Central Government employees.
NOTE. Family as indicated above, means a government servant's wife/husband residing with him/her and legitimate children or step children residing with and wholly dependent upon the him/her. Wives of Central Government employees if serving in non eligible offices are also eligible to participate.
16. Normally all artists participating in a drama in the competition would belong to the Ministry which enters that particular play in the said competition. But where necessary a Ministry may borrow female artists from another Ministry with prior permission of the Board and the Ministry concerned.
If Court is closed on last day of prescribed period, next working day is to be treated as last date of limitation for filing an appeal
Sapna Packaging Industries Vs. Commissioner of Central Excise, Chennai [(2014) 51 taxmann.com 40 (Chennai – CESTAT)]
Sapna Packaging Industries (the Appellant) received an Order-In-Original on August 17, 2013 and preferred an appeal against the said order before the Ld. Commissioner (Appeals) on November 18, 2013.The Ld. Commissioner (Appeals) rejected the appeal on the ground of being time barred under Section 35(1) of the Central Excise Act, 1944 (the Excise Act) as the appeal was filed beyond 60 days plus 30 days, being his permissible period of condonation.
Being aggrieved the Appellant preferred an appeal before the Hon'ble CESTAT, Chennai and argued that 90 days expired on November 15, 2013, which was holiday due to Muhurram (Friday) and 16th and 17thwere holidays, being Saturday and Sunday.Hence, appeal could be filed on November 18, 2013.
The Hon'ble CESTAT, Chennaiafter discussing Section 9 of the General Clause Act, 1897 read with Section 4 of the Limitation Act, 1963 and relying upon the finding of the Hon'ble CESTAT, Bangalore in the case of Aarti TechnopacksVs. CCE[2008 (225) ELT 501 (Tri.-Bang.)] held that if court is closed on last day of prescribed period, next working day is to be treated as last date of limitation. Thus, in view of 15th, 16thand 17thNovember being holidays, appeal filed on November 18, 2013 was within permissible period of condonation of Commissioner (Appeals).
The Hon'ble Tribunal accordingly remanded the matter back to the Commissioner (Appeals) to decide application of the condonation of delay in filing the appeals on merit in accordance with law.
Principal Manufacturer is entitled to avail Cenvat credit of duty paid by job worker on intermediate goods who choose to pay duty instead of availing exemption
Thermax Ltd. Vs. Commissioner of Central Excise, Vadodara-I [(2014) 51 taxmann.com 39 (Ahmedabad – CESTAT)]
Thermax Ltd. (the Appellant) had cleared certain inputs to its job workers as per the procedure laid down under Rule 4(5)(a) of the Cenvat Credit Rules, 2004 (the Credit Rules) for manufacture of intermediate goods. The job worker had not taken exemption under Notification No. 214/86-CE dated March 25, 1986 (the Exemption Notification) and paid duty on intermediate goods on value including inputs supplied free by the Appellant. Thereafter, the Appellant had taken Cenvat credit of duty paid by the job worker on intermediate goods.
The Department argued that the Appellant had taken Cenvat Credit twice on the same inputs viz. first, on receipt from supplier and secondly, by inclusion thereof in value of intermediate goods.
Accordingly the Department sought reversal of double credit.Being aggrieved, the Appellant preferred an appeal before the Hon'ble CESTAT, Ahmedabad.
The Hon'ble CESTAT, Ahmedabadperusal of the Rule 4(5)(a) of the Credit Rules and relying upon the following cases:
- Bharat Heavy Electricals Ltd. Vs. CCE & ST[2014 (300) ELT (Trib. – Delhi)];
- Ujagar Prints Union of India[1989 (39) E.L.T. 493 (S.C.)]
Held that the Exemption Notification and Rule 4(5)(a) of the Credit Rules does not mandate compulsory availment of exemption. Since duty was actually paid by job worker, and intermediate goods were different from inputs supplied by the Appellant, the Appellant was eligible for Cenvat credit of duty so paid.
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