Whetherappellant counsel's error in not filing appeal in time may come in the way for rendering justice?

PJ/Case Law/2013-14/2063

Case:- M/s INDIA POLYFINS LTD, SHRI VIJENDRA ARYA DIRECTOR VERSUS CCE & ST, SURAT.

Citation:-2014 –TIOL-273-CESTAT-AHM

Brief Facts:-All these applications for condonation of delay are filed by the appellants for condonating the delay in filing appeal before the Tribunal.

Appellant Contentions:-Ld counsel appearing on behalf of the appellants submitted that there is definitely a great delay in filing the appeals before the Tribunal. It is his submission that the appellant herein had on receipt of Order in Appeal handed over the same to their advocate for filing appeals which received for signature and sent back to the advocate for filing the same before the Tribunal. He would submit that the Ld. Advocate had given the appellant’s copy of the consignment note from the courier as the proof of dispatch of the appeal to Tribunal. He would submit that they were called by the Range Officers for paying the confirmed duty or produce stay order. On receiving this wake-up call, the appellant herein started activity of trying to locate copy of the appeal filed before the Tribunal. He would submit that they had followed up with the advocate, as also with the Tribunal to ascertain whether the appeal was received but could not get any information. Subsequently, when they took up the matter with the Ld. Counsel, he would submit, that the advocate vide its letter dated 3.9.2013 informed the appellant that he is unable to trace the proof of delivery of consignment slip of the courier and efforts made by them with the courier agency also did not get any fruitful results as the courier company informed that they did not have any records of the year 2007. He would submit that since it is an error on behalf of the counsel to whom the matters were handed over for filing the appeal, the delay needs condoned as has been held on the Hon'ble High Court of Kolkatta in the case of Bengal Rolling Mills Pvt Ltd., - 2004 (168) ELT 441 and identical view being expressed by High Court of Madras in the case of Arma Clinical services and Hospitals Pvt Ltd., vs. Commissioner - 2009 (239) ELT.A.20.

Respondent Contentions:-Ld. Departmental Representative on the other hand would submit that the appellant herein are from the organized sector and hence they should have inquired about the status of the appeals filed by them. It is his submission that the appellant did not bother to check up either with the Tribunal or with the Advocate as to the status of their appeal and have been callous. He would submit that justification given by the appellants herein for seeking condonation of delay is not acceptable. He would submit that Hon. Supreme Court in the case of Sh. Balwant Singh vs. Jagdish Singh - 2010 (261) ELT 50 has laid down that any delay would be taking away the right of the other person and when the delay is the result of negligence or in action of the party it should not be condoned. It is his submission that because of the negligence of the appellant herein revenue should not be deprived of the right to collect the duty liability confirmed against the appellant as also penalty.

Reasoning of Judgment:-We have given anxious considerations to the submissions made by both sides and perused the records.

On perusal of the records, we do find that there is great delay in filing appeal before the Tribunal and both sides agree that Tribunal has the power to condone the delay.

On perusal of the records, it transpires that the appellant undoubtedly has forwarded the papers to their advocates in Ahmedabad for filing appeal before the Tribunal. On perusal of the letter written by the Advocate to whom the papers were forwarded, we find that the Ld. Advocate has specifically stated that the courier agency engaged by him to dispatch the appeal, to Tribunal had given the consignment slip, but unable to trace the proof of delivery; he has shut down the practice and no papers are available with him. We also find that the Director of the Company has filed an affidavit, fairly detailed one, in support of the application for condonation of delay which has been duly notorised and states the action taken by the appellant to find out as to what was the result of the appeals filed albeit the fact that said action was triggered by a call from Revenue Office for producing copy of the stay order from Tribunal, At this juncture, we find that there can not be any reason for appellant to disbelieve that advocate on record had preferred the appeal and stay petition as the consignment slip of the courier indicates dispatch of some papers to Tribunal. Besides this evidence, also we find that the counsel to whom responsibility was given by the appellant, has owned up that he did not follow up as to the status of the appeal and stay petition. In our view, though there is a considerable delay in filing appeal, the delay can be condoned due to the reasons that the appellant counsel error in not filing appeal in time should not come in the way for rendering justice, but the main appellant needs be saddled with a cost, which we fix as Rs.5000/- (Rupees five thousand only) to be paid as cost to Commissioner of Central Excise, Surat-II and produce evidence to that effect. The said cost as imposed by Tribunal should be paid within a period of 6 (six) weeks from the date of receipt of copy of this Order.

Subject to such compliance being reported, applications for the condonation of delay are allowed and Registry is directed to take the stay petitions and appeals on record.

Assessee should report compliance of payment of Rs.5000/- (Rupees five thousand only) on or before Jan. 13, 2014.

Decision:-Condonation of Delay application allowed.

Comment:-The analogy that is drawn from this case is that appellant counsel’s error in not filing appeal in time should not come in the way for rendering justice. The consignment slip of the courier indicates dispatch of some papers to Tribunal. Since it is an error on behalf of the counsel to whom the matters were handed over for filing the appeal, the delay needs condoned as has been held on the Hon'ble High Court of Kolkata in the case of Bengal Rolling Mills Pvt Ltd., - 2004 (168) ELT 441.

Comments

PJ/Case Law/2013-14/2063

Post a Comment

Query