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TMI Blog2019 (5) TMI 668X X X X Extracts X X X X X X X X Extracts X X X X ..... oner of Division-IV, CGST and Central Excise, Belapur Commissionerate has put the blame on advocate representing the Department is shocking. 2. The Central Excise Appeal was lodged on 12th April, 2016. It appears that on 25th August, 2016, the appeal was listed before the learned Prothonotary and Senior Master. He passed a conditional order granting time of two weeks to remove office objections from the date of disposal of the Notice of Motion for delay condonation. He directed that on the failure to remove office objections within stipulated time, the appeal will stand rejected in exercise of powers under Rule 986 of the High Court Original Side Rules. The delay in preferring Appeal was condoned on 17th April, 2017. The conditional order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the appeal has been dismissed. Instead of writing a letter to the advocate on record, a letter was addressed by the Commissionerate on 2nd August, 2018 to the Senior Panel Counsel to suggest the name of a junior Counsel. The affidavit further records that the Senior Panel Counsel directed them to get in touch with the junior Counsel who had filed his appearance. In paragraph 5, it is stated that a second letter dated 16th August, 2017 was written to the said junior Counsel informing him about the dismissal of the appeal. There is a specific allegation made in paragraph 5 that the said junior Counsel refused to do anything in the matter as he had not received his fees and agreed to give his 'no objection' in the matter. We have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h will entail expenses and only after such application is filed and allowed, the objections can be removed; (d) In case, the Deputy Commissioner wishes to have the appeal restored, necessary expenses as mentioned in the bill will have to be paid as till date the junior Counsel had not received any amount; (e) The Counsel is not expected or required to pay any expenses of the department; (f) The junior Counsel informed the Deputy Commissioner that what is mentioned in the email does not appeal to the Deputy Commissioner, the junior Counsel had no objection if the matter was assigned to the another advocate. 4. Notwithstanding the clear statements made in the email that in paragraph nos. 5 and 6 of the affidavit in support, allegations ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... T and Central Excise, Belapur to the Assistant Commissioner (Legal), Belapur Commissionerate that the junior panel Advocate informed that the notice of motion delivered to him was different from the one which was forwarded by him to the Department and that as the notice of motion was different from one which was drafted, he is not going to file the same in the High Court. Surprisingly, the Assistant Commissioner, Legal addressed email to the said junior Counsel wherein it was mentioned that there was a delay on the part of the panel Counsel in preparation of draft notice of motion. The said email was responded by the said panel Counsel by his email dated 24th May, 2018. Perhaps, the panel Counsel had an objection to the ground added by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or panel Advocate appointed. The said panel Advocate forwarded a notice of motion for signature. Instead of returning the notice of motion duly signed, a modified notice of motion was sent to the junior panel Counsel who raised an objection to the act of sending modified Notice of Motion. There is no explanation as to why such a modified notice of motion was sent to the advocate. 9. Firstly, there is a default on the part of the Department as objections were not removed. Secondly, the Department refused to pay even a single farthing to the junior Counsel who was engaged in August, 2017 to file a notice of motion for restoration. We fail to understand as to how the Department expects the Advocate to file a notice of motion for restoration t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at ultimately the present notice of motion is not filed through the second advocate but through the third advocate. 12. Considering the conduct of the applicant which is reflected from the findings recorded above, no case is made out for restoration of appeal. The Notice of Motion is accordingly dismissed. 13. Considering the manner in which this mater is handled by the Department, we direct the Prothonotary and Senior Master to forward a copy of this order to the Central Board of Indirect Taxes and Customs so that appropriate remedial action can be taken by the Department. We are constrained to observe that if the Department refuses to pay even out of pocket expenses to the advocate, many of such appeals are bound to be dismissed for non ..... X X X X Extracts X X X X X X X X Extracts X X X X
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