Miscellaneous Application No. 99 of 2007
and
Miscellaneous Application No. 2 of 2001.
(In Second Appeal No. 388 of 1999 and Second Appeal No. 1561 of 2000)

APPEARANCE

Mr. V. V. Mody, Advocate, for the applicant.
Mr. B R. Zagare. Asstt. Commissioner (Legal) for the opponent.

CORAM :

Mr. S.B. Munde, Member
Mr. S L. Bhagat, Member,
Mr. G G. Kochrekar, Member.

(Per Mr. G.G. Kochrekar, Member)

The present pair of Miscellaneous Applications has been filed in the Second Appeal No. 388 of 1999 and Second Appeal No.1561 of 2000 with a prayer to condone the delay that has occurred in filing of these Second Appeals.

2. The relevant facts leading to these matters can be stated as follows.

M/s. S.D. Metal Corporation; i.e., the present applicant is a dealer in Iron & Steel and is duly registered under the provisions of the Bombay Sales Tax Act, 1959 (Bombay Act) as also the Central Sales Tax Act, 1956 (Central Act). He was assessed for the financial year 1988-89 under the Central Act by virtue of the assessment order dated 27-3-1991 passed by the concerned assessing authority; i.e., Sales Tax Officer C-Ward Unit-III Mumbai. This assessment resulted in certain extra demand, which had arisen mainly due to non-production of C-Forms in respect of certain sales which were claimed by the appellant as liable to tax at the concessional rate of 4% under section 8(1)(b) of the Central Act. The said assessment was then agitated by filing an appeal. The appellant’s not having received the desired relief in the First Appeal, the matter was carried to the Tribunal through Second Appeal No. 554 of 1994. This Second Appeal was subsequently decided by the Third bench of this Tribunal by its judgment dated 10-10-1997. Since the impugned interstate sales of Rs. 32,900/- were supported by the relevant C-Form and the other relevant documents, the Third bench was pleased to allow the impugned transactions against C-Form and direct assessment of the said sales to tax at the concessional rate at 4%. The Second Appeal was thus allowed by the said judgment dated
10-10-1997, the operative order whereof was as under:

"Second Appeal No. 554 of 1994 is allowed. The order of the lower authority is annulled. The lower appellate authority is directed to allow the transaction at net value of Rs. 32,900/- based on C form declaration which is already on the record of the said authority covering sale bill No. MS/274 dated 16-6-1988. These sales are subjected to Central Sales Tax at 8 percent holding the same as not supported by the impugned declaration. It is directed that these sales be charged to 4 per cent Central Sales Tax as per the provisions under the Central Act.

2. The consequential benefit accruing therefrom should also be given to the appellant.

3. As a result of above direction, if the appellant is to receive any amount, the same should be paid to it as per the provisions of the Central law."

In pursuance of the directions contained in the said judgment dated 10-10-1997, the concerned first appellate authority; i.e., Asst.Commissioner of Sales Tax (Appeals) P-4, Churchgate Division, Mumbai subsequently passed consequential order dated 28-10-1998, thereby reworking out the final figures. By virtue of the said consequential order, relief in tax amount of Rs. 1,316/- and consequential relief in tax amount of Rs. 1,316/- and consequential relief in the interest amount of Rs. 613/- was calculated as per the Tribunal’s judgment dated 10-10-97. After giving credit to the part payment of Rs.6000/- made in the appeal proceedings, the amount of Rs. 26,066/- was shown by the said Consequential Order, as payable by the appellant. Being aggrieved by the fact that the said consequential order has been passed without taking into consideration the relief availed and the payments made under the Amnesty Scheme declared by the Government, the appellant has filled a second appeal before this Tribunal which has been registered as Second Appeal No. 388 of 1999.

3. Before filing of the said Second Appeal No. 388 of 1999, the appellant had submitted a Rectification Application dated 25-11-1998 before the appellate Asstt. Commissioner with a prayer to rectify the aforesaid consequential order dated 28-10-1998 under section 9(2) of the Central Act read with section 62 of the Bombay Act so as to give necessary credit in the context of the relief availed and the payments made under the Amnesty Scheme. Since this Rectification Application was not decided by the appellate Asst.Commissioner within the desired time, the appellant filed the Second Appeal No. 388 of 1999 as an abundant precaution.

4. Subsequently, in pursuance of the aforesaid rectification application dated 25-11-98, the appellate Asstt. Commissioner passed Rectification order dated 19-3-99. By this order, he rectified the consequential order dated 28-10-1998, so as to hold that the appellant is entitled to a refund of Rs. 1,316/- (i.e., the amount of relief in tax amount @ 4% in the context of the disputed interstate sales of Rs. 32,900/-) While passing this rectification order, the appellate Asstt. Commissioner observed that the appellant had made lesser payment under the Amnesty Scheme and therefore the relief granted to the appellant under the Amnesty Scheme deserves to be withdrawn. Against this rectification order dated 19-3-1999, the appellant has filed a Second Appeal before this Tribunal, which has been registered as Second Appeal No. 1561 of 2000.

5. Both the aforesaid Second Appeals; i.e., Second Appeal No. 388 of 1999 and Second Appeal No. 1561 of 2000 are delayed. The delay in filing of the Second Appeal No. 388 of 1999 is of 44 days, while that in respect of Second Appeal No. 1561 of 2000 is of around one and half years. With a prayer to condone the said delay the appellant has filed the present pair of Miscellaneous Applications.

6. Both these Miscellaneous Applications were subsequently fixed for hearing when Mr. V.V. Mody, learned Advocate for the applicant and Mr. B.R. Zagare, learned Asstt. Commissioner (Legal) for the revenue appeared before us. They were heard on 10-8-2007.

7. On careful consideration of the facts of the case and the rival submissions, we are of the considered view that the impugned delay can be said to be due to ‘sufficient cause’ within the meaning of that term in section 60 of the Bombay Act and hence the Miscellaneous Applications deserve to be allowed. As mentioned above, the appellant was mainly aggrieved by the appellate Asstt. Commissioner’s not having considered while passing the consequential order, the relief availed and the payments made under the Amnesty Scheme, and therefore the appellant had approached the appellate Asstt. Commissioner with a Rectification Application for correction of the apparent mistake under section 62 of the Bombay Act. This Rectification Application was made immediately on receipt of the Consequential Order dated 28-10-1998. Since this Rectification Application was not decided within the desired time, the appellant filed Second Appeal No. 388 of 1999. It is thus clear that the appellant during the period prior to filing of the said Second Appeal, was following the rectification remedy before the appellate Asstt. Commissioner. It has to be noted that even before the appellate Asst. Commissioner passed the rectification order, the appellant was diligent enough in approaching the Tribunal with the Second Appeal. Considering these facts, the delay in filing of the Second Appeal No 388 of 1999 certainly deserves to be condoned.

8. As regards the delay in filing of the Second Appeal No. 1561 of 2000, Mr Mody, submitted that since Second Appeal No. 388 of 1999 was already pending before the Tribunal, the appellant thought that the desired relief in the matter of passing of appropriate Consequential Order, can be sought through the said Second Appeal No. 388 of 1999, and that there was no need to file a separate Second Appeal against the Rectification Order dated 19-3-1999. Subsequently, as an abundant precaution the appellant chose to file a separate Second Appeal against the rectification order dated 19-3-1999. It was prayed that considering these facts, the delay may be condoned. Mr. Mody also pointed out that even if this delay in filing of the Second Appeal No. 1561 of 2000 is not condoned, the appellant has a right to seek the desired relief through Second Appeal No. 388 of 1999. This is so, because both the impugned orders had arisen from out of the appellate Asstt Commissioner’s action to give necessary effect at the ground level to the Tribunal’s judgment dated 10-10-1997 in the Second Appeal No. 554 of 1994. On careful consideration, we feel inclined to agree with Mr. Mody. The main question here is to properly rework out the figures at the ground level in pursuance of the said judgment dated 10-10-1997 and that can certainly be done through Second Appeal No. 388 of 1999. Considering the overall facts of the case and the rival submissions, the delay in filing of Second Appeal No. 1561 of 2000 is also found fit to be condoned.

9. In the light of the foregoings, the delay in filing of both the Seconds Appeals is condoned by passing the following order.

ORDER

Miscellaneous Application No. 99 of 2007 and Miscellaneous Application No. 2 of 2001 are allowed. The delay that has occurred in filing of Second Appeal No. 388 of 1999 and Second Appeal No. 1561 of 2001 is condoned and the said second Appeals are admitted for being heard on merits. These Second Appeals shall be fixed for early hearing.

No order as to costs.