Whether the condonation of delay should be granted in larger public interest by the court when no valid explanation given for delay by the department?

PJ/CASE LAW/2016-17/3041

Case:- COMMISSIONER OF C. EX., CUS. & S.T. Versus ASHWANI AND CO.

Citation:-2016 (331) E.L.T. 190 (All.)

Brief Facts:-This appeal on behalf of the Tribunal Kanpur was presented in the High Court on 4-7-2015 through their Advocate. The Stamp Reporter made a report dated 4-7-2015 indicating that the appeal was within the period of limitation up to 14-6-2015 and, thereafter, it was beyond time by 20 days. Further, the Stamp Reporter pointed out a defect, namely that the certified copy of the impugned order of the Tribunal was not filed. The memo of appeal was returned to the counsel to file an application under Section 5 of the Limitation Act and to remove the defect. The appeal was again presented before the Stamp Reporter on 28-9-2015. The defect was removed and the certified copy of the impugned order was filed along with an application for condonation of delay. The said appeal came up for admission before the Court on 5-10-2015, on which date, the Court noticed that the application under Section 5 of the Limitation Act was sworn by the clerk of the counsel on 14-8-2015 in which the delay up till 12-6-2015 was explained. No explanation was given as to why the appeal could not be filed between 12-6-2015 and 28-9-2015. Accordingly, the Court directed the appellant to file a supplementary affidavit explaining the delay and fixed on 13-10-2015. On this date, the learned counsel sent an illness slip. No supplementary affidavit was filed and, accordingly, the matter was adjourned for 27-10-2015. On this date, another counsel appeared contending that he had now received instructions on behalf of the appellant and filed a supplementary affidavit. In this affidavit, allegations against the former counsel was levelled contending that the certified copy of the judgment of the Tribunal was provided in the office of former counsel on 7-7-2015 and, various letters dated 23-7-2015, 12-8-2015 and 16-9-2015 were written requesting the counsel to intimate the status of the appeal but no reply was given. It was also asserted by Assistant Commissioner, who has filed the supplementary affidavit contending that he had got a supplementary affidavit prepared on 12-10-2015 through former counsel but for the reasons best known to him, the supplementary affidavit was not filed on 13-10-2015 nor did he appear on that date. It was asserted that the delay has been caused on account of slackness on the part of the earlier counsel. A copy of the supplementary affidavit, that is alleged to have been prepared on 12-10-2015, has also been annexed with the supplementary affidavit, which indicates that the affidavit was to be signed by the clerk of the advocate. This supplementary affidavit however, does not explain the delay as to why the appeal could not be filed from 12-6-2015 to 20-9-2015. However, since the allegations were serious, we directed the Registry to serve a copy of this affidavit to the earlier counsel of the department and requested him to file a reply.
The former counsel, has filed his personal affidavit indicating that the Department through their officials including the Commissioner were intimated orally to send the certified copy of the impugned order and file an affidavit for condonation of delay, but no one came forward to swear the affidavit. A specific assertion has been made that the Department did not send the certified copy of the Tribunal on 7-7-2015 and has only sent an attested copy, which was attested by some officer of the Excise Department. It was also pointed out that on much later stage the certified copy was presented but some how the appeal was not filed because the file of the appeal was misplaced and eventually, the appeal was filed on 28-9-2015.

Reasoning of Judgment:- Having heard the the learned counsel for the parties, The High court is constrained to observe that this kind of mud slinging between the representatives of the Department viz-a-viz their counsel posted at Allahabad is unwarranted. Dirty linen should not be washed in public. The High Court is also constrained to observe that the action of the Department in replacing the counsel in the facts and circumstances of the given case is unwarranted. No doubt, it is the prerogative of the Department to engage their counsel. It is also their prerogative to change their counsel but not in the manner in which it was done in the instant case. The High Court is also constrained to observe that when an official of the Department was present in the office of the counsel for preparation of the affidavit on 12-10-2015, the said official or Officer was required to also sign the affidavit and not to delegate the filing of the affidavit to the clerk of the learned counsel. It is not the duty of the clerk to file an affidavit on behalf of the Department. Even if there had been a delay, which could be attributed to the office of the learned counsel, nonetheless the affidavit had to be sworn by an officer of the Department. Such practice adopted by the Department is totally deplorable, which in the instant case is writ large. We find that an affidavit was prepared on 12-10-2015 but the Officer left Allahabad without swearing the affidavit knowing fully well that the case was to be taken up on 13-10-2015. What in such circumstances the learned counsel could do, except to send an illness slip. These facts are being stated so that the Department may become aware that such kind of practice is unwarranted. The Court can read between the lines and see the fine print that comes out. From the affidavit, it is also clear that no valid explanation has been given explaining the delay. Prima facie, it appears that a certified copy of the impugned order was not given to the learned counsel on 7-7-2015 and what was sent was an attested copy of the order, which was not permissible.
On the other hand, we also are constrained to observe the slackness on the part of the advocate in not pursuing the matter diligently. The learned counsel failed to intimate the Department about the defect in writing though he may have intimated them orally.

Decision:- The Court in larger interest condone the delay in filing the appeal. Section 5 application is allowed.

Comments:- The essence of the case is that the Department file the appeal with an over delay of more than three months. Both Department and earlier counsel, blaming each other for causing delay leading to change in counsel by Department. The High Court condone the delay in larger public interest.

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PJ/CASE LAW/2016-17/3041

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