9911796707
TMI Blog2015 (8) TMI 1016X X X X Extracts X X X X X X X X Extracts X X X X ..... Order in Original and therefore, in our view, the points taken in the Order in Original should have been decided on merits. - in the present case all possible steps were taken by the appellant and had there been a timely intimation by its Advocate, delay would not have occurred and therefore the appeal should not have been dismissed merely on the ground of delay because a litigant should not suffer because of ill health of the Advocate - Delay condoned. - W.P.(T) No. 2162 of 2014 - - - Dated:- 2-7-2015 - MR. D.N. PATEL AND MR. RATNAKER BHENGRA, JJ. For the Appellant: Mr. Sumeet Gadodia For the Respondent: Mr. Deepak Roshan JUDGEMENT Per: D N Patel: 1. This writ petition has been preferred against the impugned orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of this petition) from the Superintendent, Central Excise, Jamshedpur was received and thereafter, petitioner received the papers from the office of the Advocate Shri R.N. Sarkar on 30th November, 2012. 3. Affidavits sworn in by the partner of the petitioner not appreciated by the CESTAT , Kolkata : It is submitted by learned counsel for the petitioner that an affidavit sworn in by one of the partners of the petitioner firm, stating in detail the chronological sequence of events that led to the alleged delay in filing the appeal, has also been produced before the CESTAT, Kolkata. 4. Certificate given by the junior to the erstwhile Advocate of the petitioner was not appreciated by the CESTAT, Kolkata : A certificate given by junior ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng with the stay application may be heard on merits and the petitioner ensures that he will sought for no unnecessary adjournment and cooperate with the CESTAT, Kolkata in the matter. Submissions made on behalf of the respondents: 5. Counsel for the respondents submitted that no error has been committed by the CESTAT, Kolkata in dismissing the delay condonation application as there is no reasonable explanation of delay of 536 days in preferring the appeal under Section 35 B (3) of the Central Excise Act, 1944. 6. Having heard counsel for both sides and looking to the reasons stated in the application praying for condonation of delay and the affidavit sworn by the partner of this petitioner, which was produced before the CESTAT, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion if sufficient and good ground have been made out or not. Each case has to be weighed from its facts and circumstances in which the party acts and behaves. From the conduct, behaviour and attitude of the appellant it cannot be said that it had been absolutely callous and negligent in prosecuting the matter. (Emphasis supplied) In the facts of the present case also, we find no negligence on the part of the petitioner, who took proper and timely steps and the delay was unintentional and occurred only due to lack of communication. (II) Appeal should have been decided on merits and not on mere technicalities : Looking to the reasons stated by this petitioner for the delay, it appears that there were reasonable grounds for condonat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mely intimation by its Advocate, delay would not have occurred and therefore the appeal should not have been dismissed merely on the ground of delay because a litigant should not suffer because of ill health of the Advocate as has bee n held by the Hon'ble Supreme Court in the aforementioned case, i.e. the case of IMPROVEMENT TRUST, LUDHIANA vrs. UJAGAR SINGH AND OTHERS , relevant paragraphs (para 15) and of which is quoted hereunder: 15. Be that as it may, we are of the opinion that the delay in filing the first appeal before the District Judge, Ludhiana, for setting aside the sale has not been so huge warranting its dismissal on such hypertechnical ground. In fact, according to us, the appellant had taken all possible steps to pro ..... X X X X Extracts X X X X X X X X Extracts X X X X
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