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TMI Blog2020 (7) TMI 263X X X X Extracts X X X X X X X X Extracts X X X X ..... Appellant filed an Application dated 04 June, 2018 for recall of the order dated 19 April, 2018. This Application came up for hearing before the Tribunal on 22 June, 2018. On that date also, no one appeared to press the Application. It was, therefore, rejected. 3. The Appellant thereafter filed another Application on 23 December, 2019 with a prayer to recall the order dated 22 June, 2018 and restore the Appeal. It is this Application dated 23 December, 2019 that has come up for hearing today. 4. The Application contains six paragraphs and they are reproduced below : "1. This is an application for restoration of appeal, against Final Order No 51581/2018 dated 19.04.2018, whereby the Hon'ble Tribunal dismissed the appeal of the Applicant for default. The aforesaid appeal was filed by the Applicant against common Order-in-Original No. 3-5AKM/CST (Adj.)/2011 dated 11.08.2011, which confirmed total service tax demand amounting to Rs. 4,58,41,474/- along with interest and penalty, in relation to disputed "commercial training or coaching service" and "intellectual property service" alleged to have been provided by the Applicant. However, while dismissing the appeal, the Hon‟ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iled on 04 June, 2018 and the same are as follows : "1. That the aforesaid Appeal was lastly listed on 19th April 2018 before the Hon'ble Court. On that date this Hon'ble Court for the reasons specified in the court proceedings dismissed the Appeal in default. Copy of the Hon'ble Court's order dated 19th April 2018 (received by us through Counsel at his office on 5th May 2018) is annexed hereto and marked as Annexure A-1. 2. Through this application, the applicant herein seeks restoration of the Appeal. The facts relevant for this Hon'ble Forum to consider restoration are mentioned in the following paragraphs. 3. That the Appellant in this matter decided to change counsel to represent it before this Hon'ble Forum a day before the scheduled date of hearing i.e. 19th April 2018 and issued telephonic instructions to the present counsel to appear in Court and seek an adjournment for necessary preparation. 4. An associate of the present counsel Mr. Shivnath Mahanta, Advocate appeared before this Hon'ble Court accordingly on the 19h April 2018; and apprised this fact to the Hon'ble Court, which however instructed such counsel to produce letter of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from the Appellant, but in the meantime, the Appeal came up for hearing and it was dismissed; (ii) By the time the second Counsel could receive the instructions, the order had already been passed; (iii) The Application for Restoration could not be immediately filed after 19 May, 2018 as the second Counsel had to leave for his home town for more than 15 days. The Application was thereafter immediately filed when he returned; (iv) The second Counsel could not appear before the Tribunal on 22 June, 2018 when the said Application was to be heard as neither the Applicant nor the second Counsel had any knowledge about the said date. It has been submitted that the second Counsel for the Applicant was under an impression that since he did not receive any communication regarding the date of hearing of the first Restoration Application from the Registry of the Tribunal, the Application was still pending; (v) In fact, it is only when the Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 was introduced, that the Applicant inquired from the second Counsel about the status of the Restoration Application so that the possibility of availing the scheme could be explored. The second Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r filing a Restoration Application is three months as has been observed by the High Courts that a Restoration Application has to be filed within the limitation provided for filing an Appeal. In support of his contention, learned Authorized Representative has placed reliance upon a judgment of the Bombay High Court in Kirtikumar J. Shah vs Union of India [2012 (282) ELT 217 (Bom)] as also a decision of the Division Bench of the Tribunal in Kirtikumar J. Shah vs Commissioner of Central Excise, Nagpur [2009 (242) ELT 222 (Tri.-Mum)]; (v) The contention of the Applicant that it had changed the Counsel one day prior to the hearing of the Appeal on 19 April, 2018 is not correct in view of the contents of the email sent by the Applicant to its Counsel on 19 April, 2018 at 1.43 pm; (vi) The Applicant may not have appeared on 19 April, 2028 when the Appeal was listed for final hearing for the reason that the Tribunal had already on 20 March, 2018 decided a controversy raised by IIPL; and (vii) It is not that the Applicant cannot avail of the benefit of the Scheme even if the Appeal was dismissed on 19 April, 2018. The Applicant can still avail of the benefit but he would have to pay 10% ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pite of notice having been served. It would also be appropriate to examine the email sent by the Appellant to its Counsel which has been reproduced in paragraph 4 of the first Application. We have read this email more than once, but are unable to gather anything from this that may indicate that the second Counsel had been engaged on 18 April, 2018. In fact, it clearly transpires from the email that "till date" i.e 19 April, 2018, the first Counsel was representing them. It further states that the Appellant has decided to shift these files to the office of the second Counsel for him to handle and they were in the process of collating necessary documents and that soon the Appellant will execute a Vakalatnama in favour of the second Counsel. Thus, the facts mentioned in the Application are not borne out from the order passed by the Tribunal on 19 April, 2018 nor they are borne out from the email sent by the Appellant to the second Counsel. It is, therefore, not possible to accept the contention of the Applicant that a new Counsel had been engaged on 18 April, 2018. 12. Thus, the explanation offered by the Appellant for non-appearance of the learned Counsel on 19 April, 2018 cannot be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 18. In such circumstances, the explanation offered by the Appellant for non-appearance of the Counsel on 22 June, 2018 cannot also be accepted. 16. What further needs to be noticed is that the second Restoration Application was filed on 23 December, 2019 for recall of the order dated 22 June, 2018. This Application is not accompanied by any Application seeking Condonation of Delay in filing the Restoration Application. Though no time limit has been specifically prescribed for filing a Restoration Application, but the Mumbai High Court in Kirtikumar J. Shah observed that the period of three months for filing the Appeal should be considered as the limitation for filing a Restoration Application. Though it is correct that the Appellant has not filed any Application seeking condonation of delay, but the explanation for the delay has been offered in the Application and, therefore, it will not be proper to reject the Application for this reason. However, the facts stated in the Application explaining the delay would have to be examined to find out whether the explanation offered for the delay of 500 days is satisfactory or not. 17. The records indicate that the order dated 22 June, 201 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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