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TMI Blog2002 (2) TMI 257X X X X Extracts X X X X X X X X Extracts X X X X ..... ly on the ground of non availing of effective alternative remedy of appeal before the CEGAT. But the ld. Counsel for the appellant submits that CEGAT is not entertaining the appeal on the ground of delay, we make it clear that CEGAT shall entertain the appeal by applying Section 14 of the Indian Limitation Act deducting the period which was consumed in filing the writ petition up to this date. Accordingly both the writ appeals are disposed of. Consequently C.M.P. No. 13522/2001 is closed." 3.Heard both sides. In view of the Hon'ble High Court condoning the delay and directing CEGAT to accept the appeal, the application is allowed. Appeal has to come up in its turn. Sd/- S.L. Peeran Member (J) [Order per : Jeet4. Ram Kait, Member (T) (Oral)]. - In this case Shri Sankararaman, learned Counsel for the applicants produced on 28-11-2001 a photo copy of the order of the Hon'ble High Court of Madras dated 31-10-2001 in Writ Appeal Nos. 1517 and 1518 of 2001 and CMP No. 13522/2001 and the learned Counsel informed that the whole delay has been condoned by the Hon'ble High Court of Judicature at Madras. Immediately on receipt of the photo copy of the order, learned Memb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore the Tribunal. The impugned order in this case was passed by the Commissioner on 31-5-93. According to the applicants they have received the impugned order on 30-6-1993. Therefore, the last date for filing the appeal before the Tribunal was on 30-9-1993, whereas the appeal has been filed before the Tribunal on 11-8-2000. that is after a delay of 6 years, 10 months and 11 days. In the application for condonation of delay the applicants have merely stated that the said delay was due to the fact that the Petitioners have challenged the applicability of the Act 40 which amended Section 11B of the pending refund claims before the Hon'ble Madras High Court and as the Commissioner (Appeals) has applied the Act 40 which amended Section 11B and the petitioners have challenged the virus of Act 40 which amended Section 11, the petitioners have filed Writ Petition against the said impugned order and the Hon'ble Madras High Court had admitted the Writ Petition Nos. 17519/93 and 17520/1993. 8.I find from the record that the Writ Petitions were dismissed by the Hon'ble High Court on 24-7-2000 by observing that the legal course open for the petitioners is to file appeal before the competent a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the deduction of any period. For this purpose the appellants/applicants have to produce satisfactory evidence as to what was the period spent by them in prosecuting the remedy before the Hon'ble High Court. Instead of doing so, what the appellants have stated is the date of disposal of their Writ petition by the High Court, and remained silent about the date of filing of the writ petition on receipt of the impugned order. There is no whisper or scrap of paper to show as to when the writ petitions were filed after receipt of the impugned order on 30-6-1993 to consider their prayer for condonation of the delay. The appellants have not produced any time chart showing among other things, when the Writ petitions were filed before the Hon'ble High Court after receipt of the impugned order on 30-6-1993. In this case the applicants held back information with regard to date of filing of the Writ petitions before the Hon'ble High Court which is very essential for the purpose of reckoning the time consumed by them in pursuing remedy before the Hon'ble High Court, as ordered by the Hon'ble High Court, which the appellants have not done. 9.In view of the above facts and circumstances of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mission, the matter was adjourned to 9-7-2001. From 9-7-2001, it was adjourned to 11-9-2001 on the request of the Counsel. Therefore, the matter was adjourned, as a last chance to get the order of the High Court modified, to enable the Tribunal to accept the application for condonation in view of the inordinate delay and it was listed for hearing on 31-10-2001. On which date, the Counsel submitted that the writ appeal is listed before the Division Bench of the High Court and sought for time. The matter was adjourned to 28-11-2001; on which date, the Counsel produced the Division Bench order of the High Court headed by Hon'ble Chief Justice . The entire High Court's order has already been extracted in my order. The order clearly indicates the Counsel's submission that CEGAT is not entertaining the appeal on the ground of delay, therefore the Division Bench of the High Court directed as follows :- "We make it clear that CEGAT shall entertain the appeal by applying Section 14 of the Limitation Act deducting the period which was consumed in filing the writ petitions upto this date. Accordingly both the Writ Appeals are disposed of. Consequently C.M.P. No. 135 22/2001 is closed." 11 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he open Court by the learned brother Shri S.L. Peeran, M (Judicial). In the petition for condonation of delay filed alongwith the appeal dated 11-8-2000 and in the Affidavit dated 9-8-2000 filed by Shri K. Kuppuswamy, Senior Manager, Secretarial of the Appellants Company appellants had only mentioned that they have challenged the applicability of the Act 40 which amended Section 11B for the pending refund claims before the Hon'ble Madras High Court, and as the Commissioner (Appeals) has applied Act 40 wich amended Section 11B, the petitioners have challenged the vires of the Act 40 which amended Section 11B and have filed writ petition against the Order-in-Appeal No. 56/93 (M), dated 31-5-93 and the Hon'ble High Court has admitted the Writ Petitions Nos. 17519 and 17520/93. But the appellants have not disclosed as to why they have filed the Writ Petitions before the Hon'ble Madras High Court and when their Writ petitions were admitted though it is mentioned that the Hon'ble Madras High Court has disposed of the Writ Petition with direction that the appellants may file appeal before the competent appellate authority." 13.Thereafter, he has proceeded to take into consideration that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... down the salient features for condoning the delay in para-3 which is extracted herein below :- The3. legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression "sufficient cause" employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice - that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that :- 1. Ordinarily a litigant does not stand to benefit by lodging an appeallate. 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the case of U.O.I. v. Kamlakshi Corporation Ltd., [1991 (55) E.L.T. 433] have deprecated the attitude of sub-ordinate authorities in not observing the judicial discipline and observed at the end of para-6 as follows :- " The principles of judicial discipline require that the orders of the higher appellate authorities should be followed unreservedly by the subordinate authorities. The mere fact that the order of the appellate authority is not "acceptable" to the department - in itself an objectionable phrase - and is the subject-matter of an appeal can furnish no ground for not following it unless its operation has been suspended by a competent Court. If this healthy rule is not followed, the result will only be undue harassment to assessees and chaos in administration of tax laws. " 18.I wish to state that the Larger Bench in the case of Dinkar Khindria v. CC, New Delhi, 2000 (118) E.L.T. 77 (T) clearly held that Tribunal cannot recall its own order and has opined on reference for recall of the order in the following manner :- "This Tribunal is a creation of the statute. Only the Powers conferred under the statute, which created it, can be exercised. It has no inherent po ..... X X X X Extracts X X X X X X X X Extracts X X X X
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