9911796707
TMI Blog2016 (9) TMI 79X X X X Extracts X X X X X X X X Extracts X X X X ..... t condition of the appellant or the appellant being a small proprietorship firm or even an SSI may also be grounds for condoning the delay and acceding to the restoration of appeal. But in the instant case the appellant is a huge Public Sector Undertaking undeniably having sufficient manpower and other organizational infrastructure and facilities. This being so in our view, such enormous delay, that too unexplained even after giving opportunity for the same borders on the callous. As the appellant PSU having slumbered for so long cannot now wake up and obtain restoration of the appeal. This is precisely what the doctrine of laches propounds. Based on the maxim “vigilantibus et non dormientibus jura subviniunt” – The law aids the vigilant, n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned Counsel for appellant prayed that the appeals may be restored as the appellants have now produced the COD clearance. He placed reliance on the judgement rendered in HPCL Vs CCE, Lucknow-2009-TIOL-1149-Cestat-Del and M/s SAIL Vs CCE ST, Raipur 2016-TIOL-1146-Cestat.Del. At this point, the learned AR Shri. Anish Gupta opposed the applications on the ground that in spite of heaving received the COD in May, 2007, the appellants have flied these restoration applications only in end of 2014 ie., after more than 7 years of obtaining COD. Further that appellants have not put forward any reason explaining the delay in filing the appeal even after obtaining the COD. He submitted that the issued is fairly covered in the cases of Ablaze Process S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by an affidavit explaining the reasons for the delay. During the hearing the learned Counsel for appellant requested on more adjournment to file an affidavit on the side of party giving the reasons for delay. At the cost of repetition, it has to be stated that these applications were filed in 2014 with delay of more than seven years. The matter came up before this bench on 20-06-2016 and the learned counsel sought adjournment for a week which was granted. Inspite of this the appellant has not put forward any affidavit explaining the reason for delay, in the restoration application. Therefore any affidavit even if filed after such long time explaining reasons for delay cannot be entertained without hesitation. 7. Another argument put for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before us. As already discussed supra when the matter had earlier come up before us on 20-06-2016, on the request of the learned Advocates for appellant adjournment was granted till 27-06-2016 making it clear that it would be the last chance. Even so, we find that the appellants have not filed any affidavit or statement explaining the reasons for such humongous delay. 9. Another judgment relied by the appellant is in the case of M/s SAIL Ltd Vs CCE ST, Raipur 2016-1146-Cestat-Del. The appellant urged that the Tribunal in the said case had restored the appeal even though the application for restoration was filed after 8 years along with COD. On perusal of this judgment, it is pertinent to note that the Tribunal in the said case had take ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioner-company and show that the petitioner-Company is not interested in the proceedings. The decision of this court passed in S.C.A. 2213/2001, dated 11-03-2008[2009(234) ELT 636 (Guj)] and which is sought to be relied upon by the petitioner-company shall not come in the rescue of the petitioner-company in as much as in that case, there was no such delay in preferring the restoration application as is the case in this matter. Therefore, the said decision will not apply to the present case. 11. Similar view has been made by Tribunal in the case of Kirtikumar J Shah 2009 (242) ELT 222 (Tri-Mum) the relevant portion is extracted as under : 7. The application under consideration apart from stating that it was on account of fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here is no specific provision under the Central Excise Act, 1944 or the Rules framed thereunder prescribing the period of limitation for filing the application for restoration of the appeal dismissed either for non compliance of the provisions of Section 35F of the Central Excise Act, 1944 or otherwise. Further, under no stretch of imagination, there could be a justification to file an application at the sweet will of the applicant. Since the original period for filing the appeal is itself described as three months, the application for restoration will have to be filed within the maximum period of three months from the dismissal of the appeal. In any case, any application filed beyond such period has to disclose cause for the delay. In the ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
