9911796707
TMI Blog2014 (6) TMI 412X X X X Extracts X X X X X X X X Extracts X X X X ..... udgment [2014 (6) TMI 51 - DELHI HIGH COURT] has ordered that having regard to peculiar circumstances, the petitioner’s appeal before the CESTAT being [2013 (5) TMI 712 - CESTAT NEW DELHI] shall be taken up for consideration un-influenced by the question of delay and pending applications, if any, with respect to waiver of pre-deposit shall be first decided by the Tribunal before adjudication upon the merits of the case. Hon’ble High Court by this order directed M/s Braun Textile Processors to appear before the Registrar, CESTAT on 25/2/14 for appropriate order to list the appeal and stay application for hearing. Thus, in case of M/s Braun Textile Processors, the Hon’ble High Court has set aside the Tribunal’s order refusing the condone delay and has directed the Tribunal to hear the stay application and appeal on merits without being influenced by the question of delay. In view of this, in the present appeal also, where the facts and circumstances are identical, the same view has to be taken and the delay of 1236 days has to be condoned - Delay condoned. - C/3836/2012 - I/O ORDER NO. 658/2013 - Dated:- 16-5-2014 - Mrs. Archana Wadhwa (J) and Mr. Manmohan Singh, (T) For the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or recovery of the amount confirmed by the Commissioner vide impugned Order in Original dated 07.4.2010. It was indicated in the said letter that the Revision applications of the Appellant was dismissed vide Order dated 07.4.2010. The Customs department demanded the recovery of amount confirmed against the Applicant. 9. In the mean time they approached Punjab Haryana High Court under article 226 of the constitution of India. Hon ble High Court vide Order dated 06.11.2012 dismissed the CWP solely on the ground that admittedly the Order in Original dated 6.4.2009 was passed by the Commissioner as Adjudicating Authority and thus, Section 35EE does not provide for revision against such orders. However, Hon ble High Court granted the liberty to avail the legal remedy available to the Applicant. They have now came to Tribunal. 10. The applicant have submitted that the delay has been totaled to 1236 days in filing the present appeal which is neither intentional nor willful, but due to the reasons mentioned above which were beyond the control of the Applicant and occurred in good faith. That no prejudice shall be caused to the respondents in case the delay of 1236 days is condoned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s is a clear indication of the appellants unwillingness to avail remedy before the High Court, i.e. the Bombay High Court which had the exclusive jurisdiction to entertain an appeal under Section 35 of the Act. It is not possible to believe that as on 7-11-2007, the appellants and their Advocates were not aware of the judgment of this Court in Ambica Industries v. Commissioner of Central Excise (2007) 6 SCC 769 = 2007 (213) E.L.T. 323 (S.C.) whereby dismissal of the writ petition by the Delhi High Court on the ground of lack of territorial jurisdiction was confirmed and it was observed that the parties cannot be allowed to indulge in forum shopping. It has not at all surprised us that after having made a prayer that the writ petitions filed by them be treated as appeals under Section 35, two of the appellants filed applications for recall of that order. No doubt, the learned Single Judge accepted their prayer and the Division Bench confirmed the order of the learned Single Judge but the manner in which the appellants prosecuted the writ petitions before the Delhi High Court leaves no room for doubt that they had done so with the sole object of delaying compliance of the direction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly M/s Cannon Steels existed since 1995. There are other companies of the group which have been operating in import and export matter for long time. Large number of disputes keeps coming before the Tribunal for decision and they are all aware of the forum where remedy should be sought. 16. There was nothing on records to show that they have followed up the matter with revisionary authority to find out the status of their application. But they have merely submitted that the appeal was provisionally admitted. They further took the plea that it was only 2012, they came to know that their appeal was dismissed by the revisionary authority when department came for recovery of the amount. Such plea is to paint gloomy picture about conduct of appellant. Such view is fortified from the judgment of Apex Court in the case of Ketan Parikh 2012 (275) ELT 3 (S.C.). 17. Written submissions made by the appellants was examined. After rejection of their appeal by revisions authority, appellants lost remedy before Hon ble High Court of Punjab Harayana. 18. In this regard it may be appreciated that guidance note preamble to Order-in-Original No. 34/ACE/J.J./2009 dated 06.4.2009 clearly ment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by law, it has no right to ask the other side to suffer for the indolence of the former. 22. Limitation has prescribed life span to legal remedy and also to save time of judicial forums without the precious time of courts wasted trying a time-barred remedy lost by afflux of time. Such remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy which is enshrined in the maxim interest reipublicue up sit finis litium (It is for general welfare that a period be put to litigation). Accordingly, unreasonable and unexplained delay makes the remedy liable to be fatal. 23. Merely explaining the revision remedy was sought, appellant is not absolved of its obligation to adhere to the limitation prescribed by law. Laxity does not add to longevity to a remedy which exhaust with the passage of time following doctrine of resjudicate. Casual approach of appellant shows its scanty regard to law. Had there been bonofide, the appellant would have pursued its right with the Revisional Authority. But that has also not come to record. No vigilant attitude of appellant is visible from record. Length of deliberate delay cripples a litigant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cretary regarding the status of the case, they were informed vide their letter dated 28.2.12 that the revision application already stand dismissed by the Joint Secretary. Thereafter the department wrote a letter dated 21.8.12 to the appellant for recovery of amounts in question. As per the appellant, they came to know about the dismissal of the revision application only on receipt of said letter from the Revenue. 28. Thereafter the matter was taken before the Hon ble High Court of Punjab and Haryana who vide their order dated 6.11.12 held that dismissal of revision application by the Joint Secretary was in accordance with the law inasmuch as the impugned order was passed by Commissioner and was appealable before the CESTAT. The appellants were however, granted liberty to avail the legal remedy available to them. Consequently the present appeal stand filed by the appellant along with stay petition and condonation of delay application. 29. The appellant, instead of filing an appeal before Tribunal, challenged the impugned order before Joint Secretary (Revision), well within the limitation period. The officer of the Joint Secretary also accepted the said revision application, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ations made by learned Member (Technical). First of all, I would like to observe here that the observations of leanred Member (Techncial) that when the appellant made unlawful claim of drawback it followed dilator tactics without benefit of prosecution of remedy before Tribunal do not stand agreed with by me. We have not heard either side on merits of the case and no argument were advanced on the merits as it was only the question of COD and as such, we cannot say at this point of time that claim of drawback made by the assessee are unlawful or not. Further, there is nothing on record to show that such filing of revision application was reflecting upon any malafide on the part of the appellant. Infact, I am of the view that if the appellant would have filed an appeal before the Tribunal, they were within their rights to file the stay application also. Inasmuch as the revision application was filed and there was no stay petition, Revenue was within its rights to initiate recovery proceedings against the appellant. As such, the appellant does not get benefited by filing a revision application before the Joint Secretary instead of filing an appeal. 34. It is matter of record that e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of a non-deliberate delay. (v) There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk. (vi) It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so. Making a justice oriented approach from this perspective, delay in the institution of appeals must be condoned. [para 3] When we apply the above principles to the facts of the present case, we note that justice- oriented approach has to be adopted and it cannot be said, in absence of any evidence on record, that there was any intent on the part of the appellant, to file revision applications instead of filing appeals before Tribunal so as to abuse the process of law. 36. The fact that issue that whether the period during which the appeal was lying before the wrong forum has to be excluded from the limitation period is a well settled principles. Tribunal in the case of Cairn Energy India Pvt. Ltd. vs. C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Court there, and the matters were being decided against them in the Bombay High Court, they have chosen to invoke the jurisdiction of Delhi High Court as they were sure that in view of their past conduct, Bombay High Court may not interfere with order of Appellate Tribunal. It was in these circumstances that Hon ble Supreme Court observed that there were not bonafide prosecuting remedy before a wrong forum and as such, cannot invoke Section 14. In the present case, there is no evidence to reflect upon the appellants intentional filing revision application as already observed contrary behavior of the Revenue, in not going ahead with the recovery of dues during pendency of revision application, themselves finding out the status of the revision application etc., are of indicative of the fact that filing of revision application before the Joint Secretary are covered with the expression pursuing the prosecuting diligency and bona fide proceedings before wrong forum. The time spent therein and the subsequent non receipt of order by the appellant has to be held as sufficient reason for condonation of delay, especially keeping in minds the principles laid down by the Hon ble Supreme Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4 of the Customs Act, 1962. Beside this, penalty of ₹ 1,00,00,000/-, ₹ 75,00,000/- and ₹ 1,00,00,000/- was imposed on appellant company - M/s CIS Exports Pvt. Ltd., M/s Braun Textile Processors, Ludhiana, and Shri R.K. Goyal, Director of M/s CIS Exports Pvt. Ltd. respectively under Section 114AA of Customs Act, 1962. Against this order of the Commissioner, the appellant company filed an appeal before the Tribunal on 5th December 2012 with a delay of 1236 days from the date of communication of the order. Accordingly, alongwith the appeal and stay application, they also filed an application for condonation of delay. The application for condonation of delay was heard on 06/05/13. Before the Bench, the appellant pleaded that they had initially filed a revision application against the Commissioner s order before Joint Secretary (Revision) on 15/07/2009 and this revision application was accepted by the office of JS (RA) without any objection, that subsequently, JS (RA) by an ex-parte order dated 07/04/10 rejected this application for the lack of jurisdiction on the ground that appeal against the Commissioner s order was to be filed before the Tribunal, that this order w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n to petitioner to take recourse to the remedies available to them in accordance with law, they filed this appeal before the Tribunal, that in view of this, there are bonafide reasons for delay, that M/s Braun Textile Processors on whom penalty has been imposed by the same impugned order dated 06/4/09 had also filed revision application before JS (RA) against the same order of the Commissioner and their application had also been rejected ex-parte by the JS (RA) vide order-in-revision dated 07/04/10, that M/s Braun Textile Processors had also approached Hon ble Punjab Haryana High Court and in pursuance of the order dated 06/11/12 of Hon ble Punjab Haryana High Court had filed an appeal before the Tribunal alongwith application for Condonation of Delay, that though the application of M/s Braun Textile Processors for Condonation of Delay was dismissed by the Tribunal, on an appeal being filed by M/s Braun Textile Processors before Hon ble Delhi High Court against the Tribunal s order, the Hon ble Delhi High Court vide judgment dated 18/02/14 has directed the Tribunal to decide the stay application and appeal on merits without being influenced by question of delay, and that in vie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t both the appellant in this appeal and M/s Braun Textile Processors, had filed revision applications before the Joint Secretary (revision application) and their revision applications were rejected as being filed beyond jurisdiction by a common order dated 07/04/10. The order-in-revision does not indicate that this order had been passed after hearing the appellant and the copy of the same had been despatched to them. In view of this, the appellant s contention that they became aware of the order dated 07/04/10 of the JS (RA) only when the recovery proceedings were initiated has to be accepted. From the records, it is seen that the copy of the order was received by them on 05/12/12. Thereafter the appellant as well as M/s Braun Textile Processors filed writ-petitions before Hon ble Punjab Haryana High Court and Hon ble Punjab Haryana High Court by a common order, while upholding the rejection of their revision applications as not maintainable for the want of jurisdiction, had directed they may seek relief at the appropriate forum and accordingly both the appellant and M/s Braun Textile Processors filed appeals alongwith COD applications for condonation of delay before the Tribun ..... X X X X Extracts X X X X X X X X Extracts X X X X
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