2013 (3) TMI 235 - HC - Central Excise

Miscellaneous application filed for restoration of appeal dismissed - delay in filing appeals - non-compliance of the provisions of Section 35F of the Central Excise Act, 1944 - Held that - Insofar as the delay caused in filing the miscellaneous application for restoration is concerned, a perusal of the averments made therein indicates that all that is stated therein is that the petitioner-company had been suffering from financial difficulties. Such averments fly in the face of the statement made before this court on 10th September, 2004 whereby it was stated that the petitioner-company was then in a position to deposit Rs. 6 lacs. Under the circumstances, the submission that the petitioner was facing financial difficulties and that petitioners had shown their bona fides by depositing the amount towards pre-deposit does not merit acceptance. Thus in respect of such inordinate delay of more than five years and half years with a one sentence explanation that the petitioners were suffering from financial difficulties, can by no stretch of imagination be said to be a reasonable explanation. Also no application for extension of time was ever moved before the Tribunal. Under these circumstances, no infirmity can be found in the impugned order of the Tribunal in rejecting the restoration application. Even the present petition challenging the above tribunal order has been filed after a period of two years from the date of the impugned order without any explanation worth the name coming forth in the petition cannot be said to be a normal delay, which can be brushed aside without any reasonable explanation coming forth - petition deserves to be dismissed.

Issues:
1. Non-compliance with provisions of Section 35F of the Central Excise Act, 1944.
2. Delay in depositing the required amount for pre-deposit.
3. Delay in filing the miscellaneous application for restoration.
4. Justifiability of rejection of restoration application by the Tribunal.
5. Filing of the present petition after a significant delay.

Issue 1: Non-compliance with provisions of Section 35F of the Central Excise Act, 1944

The petitioner-company filed an appeal with a stay application before the Tribunal, which directed a pre-deposit of a specific amount. However, the petitioner failed to comply with this order, leading to the dismissal of the appeal for non-compliance with Section 35F of the Act. Subsequently, the petitioner approached the High Court through a writ petition and was granted permission to withdraw the petition with liberty to approach the Tribunal for review upon depositing the required amount. Despite stating their ability to deposit the amount back in 2004, the petitioner took over five years to fulfill this obligation, leading to further complications.

Issue 2: Delay in depositing the required amount for pre-deposit

The petitioner's significant delay in depositing the pre-determined amount as directed by the Tribunal raised questions about their adherence to legal timelines and obligations. Despite claiming financial difficulties, the petitioner's actions contradicted their earlier statement of being able to deposit the sum promptly. The prolonged delay in fulfilling this requirement, extending over five years, indicated a lack of urgency and compliance with legal directives, contributing to the subsequent challenges faced by the petitioner in seeking restoration of their appeal.

Issue 3: Delay in filing the miscellaneous application for restoration

The petitioner's delay in filing the miscellaneous application for restoration further complicated their legal position. The application was submitted after more than five years from the initial order for pre-deposit, with the reasons provided focusing primarily on financial difficulties. However, this explanation was deemed insufficient given the petitioner's earlier assertion of being capable of making the deposit. The extended delay in initiating the restoration process highlighted the petitioner's lack of proactive legal engagement and adherence to procedural requirements.

Issue 4: Justifiability of rejection of restoration application by the Tribunal

The Tribunal's decision to reject the petitioner's application for restoration was based on the lack of reasonable cause for the delays in compliance and application filing. The Tribunal emphasized that mere financial difficulties were not a satisfactory ground for condoning the delays and restoring the appeal. The petitioner's failure to adhere to legal timelines and obligations, coupled with the absence of a compelling explanation for the delays, supported the Tribunal's decision to dismiss the restoration application, underscoring the importance of procedural compliance in legal proceedings.

Issue 5: Filing of the present petition after a significant delay

The petitioner's filing of the present petition, challenging the Tribunal's decision, after a delay of over two years from the impugned order raised additional concerns. The extended period since the dismissal of the appeal, coupled with the lack of a substantial explanation for the delayed petition, weakened the petitioner's legal position. The court highlighted that the significant delay in challenging the Tribunal's decision could not be considered normal or justified, further diminishing the petitioner's chances of a favorable outcome.

In conclusion, the court dismissed the petition, emphasizing the importance of timely compliance with legal requirements and procedural obligations. The petitioner's prolonged delays in fulfilling pre-deposit obligations, filing restoration applications, and challenging judicial decisions significantly weakened their case, leading to the dismissal of the petition without any costs awarded.

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