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TMI Blog2008 (3) TMI 228X X X X Extracts X X X X X X X X Extracts X X X X ..... d Shri D.N. Panda, Member (J) Dr. Samir Chakraborty, Advocate, for the Appellant. Shri Y.S. Loni, JDR, for the Respondent. [Order per: D.N. Panda, Member (J)]. - While moving application for condonation of delay and praying for restoration of appeal as well as praying for stay of operation of the impugned order directing no deposit of the demand during pendency of appeal, learned Counsel Dr. Chakraborty appearing for the appellant submitted that only in March, 2004 the appellant for the first time came to know about the impugned order dated 21-8-2002 passed against it by the ld. Commissioner of Central Excise. Appeal against that order was filed on 22-3-2005 and there was delay of 841 days for reasons beyond control of the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edy of appeal before appropriate forum and writ petition was disposed accordingly. Thereafter, the appellant prepared its defence for filing appeal before this Tribunal and being seriously injured by order of adjudication, the Appellant was all along vigilant to seek remedy, although remedy sought was before a wrong forum at the initial stage. The appellant acted bona fide without any deliberate delay. However, without appreciating these difficulties, this Tribunal had dismissed application for a condonation of delay in MA (COD) No. 203/05 by Order No. M-124 /S/225/A-129/KOL/06, dated 13-3- 2006. Being aggrieved, the appellant had approached the Hon'ble High Court of Calcutta in Writ Petition No. 1268 of 2006 which was disposed by an order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted. The appellant also filed another application to condone the delay by offering an explanation which can be summarized thus : The appellant engaged an advocate (one Shri M.S. Rajith) for making the motion to set the ex parte decree aside but the advocate failed to inform him that the application was dismissed for default on 17-2-1993. When he got a summons from the execution side on 5-7-1995, he approached his advocate but he was told that perhaps execution proceedings would have been taken by the decree-holder since there was no stay against such execution proceedings. On the advice of the same advocate, he signed some papers including a vakalatnama for resisting the execution proceedings, besides making a payment of rupees two thousa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability .of the explanation is the only criterion. Some times delay of the shortest range may be uncondonable due to a want of acceptable explanation whereas in certain other cases, delay of a very long range can be condoned as the explanation thereof is satisfactory. Once the court accepts the explanation as sufficient, it is the result of positive exercise of discretion and normally the superior court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds of arbitrary or perverse. But it is a different matter when the first court refuses to condone the delay. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stroy the rights of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time. 12. A court knows that refusal to condone delay would result in foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the court is always deliberate. This Court has held that the words "sufficient cause" under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice vide Shakuntala Devi jain v. Kuntal Kumaril and State of W.B. v. Administrator, Howrah Municipality . 13. It must be remembered that in every ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. 3.2 Keeping in view Apex Court decision, elaborate reasons stated in the written notes of arguments by the ld. Counsel and the submissions he made in the course of hearing, the appellant deserves consideration without being de barred from the process of justice. Huge demand was raised against the appellant and the ld. Counsel stated that they have defence plea and good chance to succeed before the ld. Adjudicating Authority if they are heard in person. Being guided by the aforesaid Apex Court decision as well as the decision of the Hon'ble High Court of Calcutta, we appreciate that the appellant should be granted an opportunity of hearing which it could not avail for reasons beyond its control. Therefore, we condone the delay in fili ..... X X X X Extracts X X X X X X X X Extracts X X X X
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