2005 PLP D (PTD)

Siraj-ul-Haq, A.R. for Respondent. Date of hearing: 4th May, 2004. MS. YASMIN ABBASEY, MEMBER (JUDICIAL-III).

Before going into the merits of case the main aspect of time-barred appeal needs consideration.

2. Heard parties representatives and perused the record.

3. The perusal of record shows that in against to the demand of department to pay Central Excise Duty on agent's commission from 1990-95, Adjudicating Officer had ordered to recover duty on agent's commission only from 1-1-1992 and the rest portion of it has been declared as time-barred. Being aggrieved by this portion of declaring the period prior to 1-1-1992 as time-barred, thus appeal has been preferred on 30-10-2002 i.e. after a lapse of about 5 months without explanation for this delay in filing the appeal. Rather from the contents of appeal it is observed that appellant/department has totally ignored this legal aspect of case as neither any reason of this delay has been explained in the memo. of appeal nor any application under section 5 of Limitation Act has been filed along with it.

4. However, when during the course of hearing this point was raised by the respondent, whereafter an application under section 5 of Limitation Act was moved by appellant on 23-2-2004 with the ground that delay occurred due to procedural tern relating to sanctioning and arranging of funds for depositing appeal's fee And that, due to negligence and unawareness, the matter was not taken seriously by the lower staff, which caused delay in filing the appeal.

5. But this ground taken by a Government functionary after a lapse of about 2 years is nothing but a lame excuse, as ignorance of law has always been considered as no excuse and the petitioner either be a Government or ordinary citizen are always been treated equally. Even otherwise, ignoring of law accompanied by circumstances, not indicating any good ground, and determining time at his own ignorance the provision of law cannot be said to have acted in good faith or with due diligence.

6. It is taken by department that delay occurred because of seeking order for sanctioning and arranging fund for depositing of appeal fee, but this plea does not have any weight therein, because even if it is taken that due to the office correspondence, department was not able to arrange fee in time. Then also in such circumstances a special procedure has been provided in. C.P.C and as the applicability of provision of C.P.C. have nowhere been debarred in Sale Tax Act therefore, C.P. being procedural law can be followed for advancement of justice and by virtue of section 149 of C.P.C. such opportunity of late payment has been provided to the party agitating before legal forum, but record is silent to the fact that whether any such step was ever taken by the appellant.

7. In order to justify his act of delayed application under section 5 of Limitation Act learned D.R. has referred 2002 PTD

549. It is correct that no hard and fast rules are required for administration of justice, but the applicability of any specific law is dependent on the fact of that particular case. Even otherwise, it is a settled principle of law that in case of delay each and every date has to be explained, if so far the sake of argument the ground taken up by appellant that they could not file appeal in time due to arrangement of fund, then also no reason has been assigned that why this application under section 5 of Limitation Act was E moved by them after about 2 years, when no such obstacle was in moving the same therefore at-least this delay cannot be said to be beyond control of appellant.

8. The upshot of above discussion is that appeal is, hopelessly time -barred and condonation of delay at this stage to appellant will not be counted as justice but will be an unjust decision in against to respondent.

9. With these observations appeal is hereby dismissed as time barred. H.B.T./351/Tax (Trib.) Appeal dismissed.