By TIOL News Service

MUMBAI, APRIL 19, 2014: WE had while reporting this case 2014-TIOL-153-CESTAT-MUM summarized the Tribunal order dismissing the COD application thus -

Appellant received order-in-appeal on 07/02/2011 and consequently time limit to file appeal expired on 06/05/2011- appeal filed before Tribunal on 18/10/2013 after a lapse of more than 2 ½ years - explanation given for the delay is quite bald and totally unsatisfactory - no reason to condone the delay - application dismissed and consequently the appeal is also dismissed: CESTAT

Submission that O-in-A received by Shri Hiresh Dhakan, Assistant Company Secretary on 07/02/2011 and he resigned on 28/02/2011 and hence nobody was aware of the pendency of the appeal till Mr. Pinglay joined in May 2013 - there is no explanation as to why after Mr. Hiresh Dhakan left anybody else could take necessary action - even after Mr. Pinglay joined in May 2013, there is a delay of six months and the appeal was filed on 18/10/2013 - from records it is seen that Mr. Pinglay was with the appellant firm all through and, therefore, the excuse offered is only an afterthought and cannot be accepted - COD dismissed: CESTAT

Against this Final order, a ROM has been filed by the appellant.

It is submitted that there is a factual error committed in para 5.1 wherein the Tribunal observed as follows:

"From the records, it is seen that Mr. Pinglay was with the appellant firm all through and, therefore, the excuse offered is only an afterthought and cannot be accepted. Thus, there is no satisfactory explanation for the delay".

Inasmuch as the unit M/s. Shree Precoated Steel Ltd., was taken over by Essar Steel Ltd. and on such taking over by M/s. Essar Steel Ltd. Mr. Pinglay joined the said firm. Therefore, it is incorrect to say that Mr. Pinglay was with M/s. Shree Precoated Steel Ltd. and in view of this error, the conclusion drawn thereafter by the Bench is incorrect, submitted the appellant.

The Bench observed –

"5. If the unit of Shree Pre-coated Steel Ltd. was taken over by M/s. Essar Steel Ltd., and Shri Pinglay was with M/s. Essar Steel Ltd., it would automatically mean that Shri Pinglay was with the firm. Further, we have observed that after Shri. Hiresh Dhakan left, anybody else could have taken necessary action for filing the appeal and even after Shri Pinglay re-joined in May, 2003 there was a delay of about six months in filing the appeal. Considering these facts into account, this Tribunal came to the conclusion that there was no satisfactory explanation for the delay in filing the appeal. It is for these reasons, the application for condonation of delay was rejected and consequently the appeal also got rejected. In view of the clear findings recorded by us, we do not find any error committed while passing the impugned order…."

Holding that there is no merit in the ROM application, the same was dismissed as being devoid of merits.

In passing: Heads I win, Tails you lose!

(See 2014-TIOL-592-CESTAT-MUM)