2006 (8) TMI 116 - HC - Central Excise

Error or failure on part of advocate should not be suffered by assessee tribunal wasn t justified in rejecting restoration application or application for condonation of just 12 days tribunal could ve restored & condoned the application by imposing appropriate terms

Summary

Issues:
Challenge to order of Central Excise and Service Tax Appellate Tribunal dismissing application for condonation of delay in filing appeal.

Analysis:
The petitioner sought to challenge the Tribunal's order dismissing the application for condonation of delay in filing the appeal, which was subsequently declined to be restored. Initially, there was confusion regarding representation as Mr. Nadkarni, who appeared for the petitioner, stated he had no instructions and did not press the application. The petitioner claimed that Smt. Maniprakash was actually briefed in the matter. Despite efforts to set aside the dismissal order, the Tribunal found Smt. Maniprakash's explanation unsatisfactory and refused to restore the appeal and condonation application.

The Tribunal's decision was based on the unsatisfactory explanation provided by Smt. Maniprakash, even though the delay sought to be condoned was only 12 days. The Court noted that appropriate terms could have been imposed by the Tribunal and the application for condonation of delay could have been restored, considering that the party should not suffer due to any error or failure on the part of the advocate.

During the proceedings, it was revealed that the petitioners had given a Bank Guarantee of Rs. 6 lakhs, which had been encashed in the meantime. Despite opposition from the respondents, the Court allowed the petition, setting aside both orders - the dismissal of the condonation application and the refusal to restore the appeal. The application for condonation of delay was directed to be restored to the Tribunal for a decision on merits and appropriate terms. The Court ordered the petitioner to pay a cost of Rs. 3000 to the respondents.

In conclusion, the Court granted the petition, setting aside the Tribunal's orders and restoring the application for condonation of delay. The matter was remitted back to the Tribunal for further consideration, emphasizing the importance of not letting the party suffer due to advocate-related issues.