2010 (7) TMI 143 - HC - Customs

Non appearance appeal dismissed by the tribunal restoration of appeal Held that - In the application for restoration moved by the appellant does not deny that the appellant knew about the date of hearing i.e. 28.10.2009. No valid reason at all is given for non-appearance. - appellant came to know that the appeal is dismissed for non-appearance on 28.10.2009 no immediate steps were taken by filing the application for restoration. Instead the appellant waited till December 2009 to file the application which was also got listed only in February 2010. This also gives an impression that the appellant was waiting for change of Roster/Bench and got the application listed only in February 2010 because of this reason. - the appellant is a Chartered Accountant and the allegation against him is that he had held that M/s Himgiri Overseas and M/s Deepshikha Overseas in making a false claim for duty drawback - The entire case based on the facts that no substantial question of law arises. - The proceedings are nothing but misuse of process of law.

Issues:
1. Restoration of the appeal dismissed in default.
2. Condonation of delay in filing/refiling the appeal.
3. Frivolous proceedings initiated by the appellant.
4. Non-appearance of the appellant during the hearing.
5. Valid reasons for non-appearance.
6. Delay in filing the application for restoration.
7. Allegations against the appellant regarding duty drawback claims.
8. Imposition of penalty and sustainability of the same.
9. Substantial question of law in the case.
10. Misuse of the legal process.

1. Restoration of the Appeal:
The appellant filed an application for the restoration of the appeal, which was dismissed in default. The delay in filing and refiling the appeal was stated to be 5 days and 11 days, respectively.

2. Condonation of Delay:
There was a significant delay of 162 days in filing the appeal. The appellant had a history of delays in the legal process, including multiple adjournment requests, which ultimately led to the dismissal of the appeal for non-prosecution and non-appearance.

3. Frivolous Proceedings:
The appellant had a history of initiating frivolous proceedings, including a belatedly filed writ petition challenging an order from the Customs Excise and Service Tax Appellate Tribunal. The appellant faced objections and delays in removing them, leading to a prolonged legal process.

4. Non-Appearance:
Despite being aware of the hearing date, the appellant did not appear in court, offering a strange reason related to personal difficulties and lack of coordination with counsel. The court found the reasons provided for non-appearance to be frivolous and false.

5. Valid Reasons for Non-Appearance:
The court emphasized that personal difficulties and lack of organization of documents were not valid reasons for non-appearance during the hearing.

6. Delay in Filing Restoration Application:
The appellant delayed filing the application for restoration until December, despite knowing about the dismissal in October. The court noted that the delay in filing the application gave the impression that the appellant was waiting for a change in the court's roster or bench.

7. Allegations Regarding Duty Drawback Claims:
The appellant, a Chartered Accountant, was implicated in duty drawback claims involving false firms. The appellant admitted to creating the false firms for withdrawing the duty drawback claim on a commission basis. A penalty of Rs.2 lakhs was imposed on the appellant, which was sustained by the Tribunal.

8. Imposition of Penalty and Misuse of Legal Process:
The court found no substantial question of law arising from the case and deemed the proceedings as a misuse of the legal process. Consequently, the court dismissed all applications with a cost of Rs.10,000 to be paid to the Delhi High Court Mediation and Conciliation Centre.

This judgment, delivered by Justice A.K. Sikri and Justice Reva Khetrapal on July 15, 2010, highlighted the appellant's history of delays, frivolous proceedings, and misuse of the legal process, ultimately leading to the dismissal of the appeal and imposition of a penalty.

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