LUPIN LTD. Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THE appellant assessee has challenged the judgment of VAT tribunal dated 30.8.2013 rejecting the second appeal filed before the said tribunal. Briefly stated the facts are that against the order of assessment passed by the competent authority, appellant preferred First Appeal before the Commissioner of Commercial Tax. There was a delay of 836 days in filing such appeal. To condone such delay the only ground that the appellant presented before the Commissioner was that the issue of taxability of input tax credit computed twice was decided by the tribunal in favour of the assessee in case of Reliance Industries and upon coming to know of such judgment, the assessee preferred the appeal. It was pointed out that such judgment of the tribunal was also confirmed by the High Court. Only on such basis, considerable delay of more than 800 days was sought to be explained. The Commissioner did not find the reasons sufficient. He therefore, dismissed the delay condonation application and resultantly also the appeal. It was against such order that the appellant had approached the VAT tribunal. The tribunal discussed at considerable length all aspects presented before it and confirmed the view of the Commissioner.

(2.) BEFORE us also learned counsel for the appellant could present only one ground for condonation of delay namely that when the Assessing Officer passed the order the law was not clear. It was only when the tribunal rendered its judgment in case of Reliance Industries that interpretation of the statutory provisions became clearer. Issue being covered in favour of the appellant technical grounds should not come in his way in substantial justice. We are however, of the opinion that explanation rendered for condonation of delay is not sufficient. At the relevant time, against the order passed by the Assessing Officer, appellant carried no further challenge. Merely because much later it was decided in a particular manner by a Court or tribunal would not give reason to the appellant to prefer the appeal. It is true that the Appellate Commissioner had power to condone the delay. It is equally true that the Courts normally adopt a liberal approach in considering the explanation for delay caused in filing the appeals since substantial justice is the primary concern. However, that does not mean howsoever long, delay should be condoned whether there is sufficient explanation or not. In a well known decision, the Constitution Bench of Supreme Court in case of Mafatlal Industries Ltd. v. Union of India : 1997 (89) ELT 247, considered various issues including the right of an assessee to seek refund of duty on the basis of decision rendered in another case. It was held that it is not open to any person to make a refund claim on the basis of a decision of a Court or Tribunal rendered in the case of another person. He cannot also claim that the decision of the Court/Tribunal in another person's case has led him to discover the mistake of law under which he has paid the tax nor can he claim that he is entitled to prefer a writ petition or to institute a suit within three years of such alleged discovery of mistake of law. It was held and observed as under: