2014 (11) TMI 158 - AT - Central Excise

Restoration of appeal - Non compliance of pre deposit order - appellant during the relevant period was litigating the issue before BIFR authorities - Company ordered to be wound up by BIFR - assets of the appellants were taken over by the Asset Reconstruction Company (India) Ltd - held that - appellant had no intention to prosecute the matter before the adjudicating authority as well as appellate forum which is evidenced from the non-representation before the lower authorities as well as before the Tribunal. Be that as it may, we find that the callous attitude of the appellant continued even while prosecuting this miscellaneous application filed in as much as this miscellaneous application was listed for disposal on 22.05.2003 and on request was adjourned to be heard on 27.06.2013. There were adjournments given in the case. After the last adjournment on 03.02.2014, the matter was listed on 28.08.2014 due to non-availability of the Bench during the interregnum period when the matter was listed. On 28.08.2014, an adjournment was sought which accommodated and the matter was listed for 15.09.2014; on the request of Ld.D.R. the matter got adjourned to today (i.e. 23.09.2014) for disposal. The entire history of the case indicates that the appellant was not serious and it seems that appellant was intentionally avoiding prosecution to prolong the proceedings as much as possible. We also notice that the appellant has filed this application for restoration of appeal only in April 2013 i.e. almost after 6 years of dismissal of the appeal for non-compliance. intent of the appellant seems to prolong the proceedings as much as possible, as the appellant was aware of dismissal of their appeal for non-compliance in March 2007 but to chose to keep silent without filing any application for restoration of appeal till April 2013. We find that no plausible explanation has been put forth in the application filed by the appellant for remaining absent from the proceedings all-through - appellant has not made out any case for the restoration of appeal in view of the foregoing - Restoration denied.

Summary

Issues involved:
1. Restoration of appeal based on non-compliance of pre-deposit order.
2. Delay in filing the application for restoration beyond the prescribed period.
3. Appellant's intention and conduct during the legal proceedings.
4. Relevance of proceedings before BIFR in the case.

Analysis:
1. The appellant sought restoration of the appeal due to non-compliance with the pre-deposit order. The appellant argued that during the relevant period, they were engaged in litigation before BIFR authorities, resulting in the winding up of the company. The appellant claimed inability to pre-deposit the amount due to these circumstances. However, the Tribunal noted the appellant's lack of intention to prosecute the matter, evident from non-representation before lower authorities and the Tribunal. The appellant's conduct in delaying the miscellaneous application further indicated a lack of seriousness in pursuing the case.

2. The delay in filing the restoration application beyond the prescribed period was a crucial point of contention. The respondent highlighted that the application was filed in April 2013, six years after the appeal was dismissed in March 2007. Precedents were cited where the Tribunal declined to entertain restoration applications filed beyond the stipulated three-month period from the date of the final order. The Tribunal emphasized the importance of timely legal actions and the consequences of prolonged inaction.

3. The Tribunal scrutinized the appellant's intent and conduct throughout the legal proceedings. The history of the case revealed a pattern of intentional delays and avoidance of prosecution. The appellant's repeated adjournment requests and lack of engagement in the proceedings raised doubts about their commitment to resolving the matter. The Tribunal concluded that the appellant's actions indicated a strategy to prolong the proceedings rather than a genuine effort to address the issues at hand.

4. The appellant's reliance on the proceedings before BIFR was also examined. Despite BIFR recommending winding up of the company in 2006, the relevant documents were not presented to the Tribunal during the initial stages of the case. The winding up order by the High Court was only recalled in May 2014, long after the dismissal of the appeal. The Tribunal emphasized that the appellant had opportunities to present relevant information during the legal proceedings but failed to do so, further weakening their case for restoration.

In the final judgment, the Tribunal dismissed the application for restoration of the appeal, citing the appellant's lack of a compelling case and the prolonged inaction in addressing the non-compliance issues. The decision underscored the importance of timely legal actions, sincere engagement in proceedings, and the consequences of deliberate delays in legal matters.