2022 (5) TMI 74 - AT - Central Excise

Seeking condonation of the delay in filing the appeal - appellant had resigned from Directorship of the company - Section 35B of the Central Excise Act, 1944 - HELD THAT - It is seen that in the present appeal, the appellant has stated in the delay condonation application that consequent to the recovery proceedings initiated by the Superintendent, the appellant made a request, by a letter dated February 21, 2019, that a certified copy of the order dated June 30, 2017 be provided and after the appellant was provided with a certified copy of the order, he filed the appeal on March 07, 2019. The appellant, therefore requested that the period of limitation should be counted from February 21, 2019. This delay condonation application has been verified by Tasleem Ahmed stating therein that the averments made in the delay condonation application are true and correct to the best of information and belief of the applicant and nothing has been concealed. On January 27, 2022 time has been granted to the appellant to file a proper affidavit to explain why a fresh appeal was filed against the same impugned order - Neither on March 30, 2022, when the matter was listed nor today the learned counsel for the appellant has appeared nor any affidavit has been filed - Such an abuse of the process cannot be over looked and has to be viewed seriously. The appellant has not only concealed material facts but has also deliberately stated false facts before the Tribunal with ulterior motives. It is, therefore, a fit case for imposition heavy cost upon the appellant. The cost is determined at Rs.10 Lakhs, which cost shall be deposited by the appellant within a period of six weeks from today in the PM CARES Fund - thus, the delay condonation application is accordingly dismissed with costs of Rs. 10 Lakhs.

Summary

Issues:
Delay Condonation Application; Filing of Fresh Appeal Against Previous Dismissed Appeal; False Undertaking; Abuse of Process; Imposition of Cost

Delay Condonation Application:
The appellant filed a delay condonation application stating that he received a certified copy of the order dated June 30, 2017, on February 21, 2019. The appellant requested the limitation period to be counted from February 21, 2019. However, the Tribunal found discrepancies as the appellant had earlier received the same order on July 08, 2017, as mentioned in a previous appeal. The appellant was directed to file an affidavit explaining the reason for filing a fresh appeal against the same order, but failed to do so. The delay condonation application was dismissed with costs of Rs. 10 Lakhs.

Filing of Fresh Appeal Against Previous Dismissed Appeal:
The appellant had previously filed an appeal, Excise Appeal no. 50087 of 2018, against the same impugned order, which was dismissed on January 11, 2018, due to non-payment of pre-deposit. Despite this, the appellant filed a fresh appeal against the same order without disclosing the earlier appeal's dismissal. The Tribunal considered this as an abuse of the process and imposed a cost of Rs. 10 Lakhs on the appellant.

False Undertaking:
The appellant gave a false undertaking stating that no appeal had been filed previously against the order dated June 30, 2017. However, records showed that the appellant had indeed filed an earlier appeal which was dismissed. This deliberate concealment of material facts and false statements before the Tribunal led to the dismissal of the delay condonation application and the appeal, along with the imposition of a heavy cost.

Abuse of Process:
The Tribunal viewed the appellant's actions as an abuse of the legal process, involving the concealment of material facts and deliberate false statements. The appellant's attempt to file a fresh appeal against an order previously dismissed without disclosing the dismissal, along with providing false information in the delay condonation application, was considered a serious violation. Consequently, a cost of Rs. 10 Lakhs was imposed on the appellant.

Imposition of Cost:
In light of the appellant's abuse of the legal process, the Tribunal imposed a cost of Rs. 10 Lakhs to be deposited within six weeks in the PM CARES Fund. Failure to deposit the cost would result in recovery similar to a penalty. The appeal was dismissed, and the matter was scheduled for a follow-up on whether the cost had been deposited.