2016 (1) TMI 155 - HC - Central Excise

Condonation of delay in filing of appeal before the High Court - slackness on the part of the Advocate and department - 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. Held that - we are 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. We are 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. We are 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. 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 07.07.2015 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. However delay condoned.

Summary

Issues:
Delay in filing the appeal, Defect in the appeal, Allegations against former counsel, Department's conduct in replacing counsel, Duty of the Department's officials in filing affidavits, Court's observations on the conduct of both parties, Condonation of delay.

Delay in filing the appeal:
The appeal by the Commissioner of Central Excise, Customs, and Service Tax, Kanpur faced delays in filing, initially being beyond the limitation period. The appellant filed for condonation of delay, citing reasons including misplacement of the appeal file and lack of communication regarding the certified copy of the impugned order.

Defect in the appeal:
The initial appeal lacked the certified copy of the Tribunal's order, leading to its return for rectification. The subsequent filing included the necessary documents along with an application for condonation of delay, which was further scrutinized by the Court.

Allegations against former counsel:
Allegations were raised against the former counsel, accusing them of negligence and delay in handling the appeal. The appellant's new counsel highlighted instances of communication breakdown and lack of response from the former counsel, leading to the delay in filing the appeal.

Department's conduct in replacing counsel:
The Court criticized the Department's manner of replacing counsel, emphasizing the need for proper procedures and adherence to legal norms. It was noted that the Department's actions in this regard were unwarranted and lacked professionalism.

Duty of the Department's officials in filing affidavits:
The Court pointed out the Department's error in delegating the filing of the affidavit to the counsel's clerk instead of an authorized officer. Emphasizing the importance of proper procedures, the Court highlighted that such practices are unacceptable in legal proceedings.

Court's observations on the conduct of both parties:
The Court expressed disapproval of the mudslinging between the Department's representatives and their counsel, urging for professionalism and decorum in legal proceedings. While acknowledging the shortcomings on both sides, the Court emphasized the need for diligence and adherence to legal protocols.

Condonation of delay:
Despite the noted lapses and delays from both the appellant and the former counsel, the Court decided to condone the delay in filing the appeal, considering the peculiar circumstances of the case. The Section 5 application for condonation of delay was allowed, and the appeal was directed to be processed further.

In conclusion, the Court's detailed analysis of the issues surrounding the delay in filing the appeal, the conduct of the parties involved, and the necessary steps taken to rectify the situation showcases the importance of procedural adherence and professionalism in legal matters.