By TIOL News Service

GUWAHATI, MAY 29, 2014: THE CESTAT dismissed the appeal of the petitioner on the ground of limitation. Inasmuch as the order dated 10.02.2011 appealed against was received by the appellant on 23.02.2011 and the appeal was filed on 12.08.2011 i.e. delayed by 2 months 19 days after the normal period of 3 months and the justification given was illness of the staff which was not accepted as a genuine cause in filing the delayed appeal. An added ground for dismissing the appeal is that the appeal was not signed by the aggrieved person in the sense that the appeal is non est.

The petitioner has filed a WP under Article 226/227 before the Guwahati High Court.

The High Court observed that the proper remedy for the writ petitioner in this case was to file an appeal under Section 35G of the CEA, 1944 to the Court against the impugned order of the Tribunal rather than the writ petition under Article 226/227 of Constitution.

Nonetheless, the High Court held -

"6. Be that as it may, since both can be filed in this court and hence we do not attach much significance to this technicality of choosing the forum except to mention this fact and clarify the legal position."

As for the dismissal of the appeal by the Tribunal, the High Court found it apposite to consider the following classic observations made in the case Sangram Singh vs. Election Tribunal, Kotah and another AIR 1955 SC 425:

"A Code of procedure must be regarded as such. It is procedure something designed to facilitate justice and further its ends; not a penal enactment for punishment and penalties; not a thing designed to trip people up. Too technical a construction of sections that leaves no room for reasonable elasticity of interpretation should therefore be guarded against (provided always that justice is done to both sides) lest the very means designed for the further laws of procedure are grounded on a principle of natural justice which requires that men should not be condemned unheard, that decisions should not be reached behind their backs, that proceedings that affect their lives and property should not continue in their absence and that they should not be precluded from participating in them. Of course, there must be exceptions and where they are clearly defined they must be given effect to. But taken by and large, and subject to that proviso, our laws of procedure should be construed, wherever that is reasonably possible, in the light of that principle."

In the above backdrop, the High Court observed -

"…, when we examine the fact of this case, we are of the considered opinion that the Tribunal should have condoned the delay in filing the appeal by the writ petitioner (appellant) instead of dismissing it on the ground of limitation. The delay in filing the appeal was hardly of 2 months and 19 days and keeping in view the ground stated in the present writ petition, we are inclined to hold that it constitutes sufficient cause within the meaning of Section 5 of the Limitation Act in filing the appeal beyond the statutory period prescribed for its filing."

The High Court added -

"…condoning the delay always advances the cause of justice and afford opportunity to parties to contest their case on merits whereas; declining to condone results in depriving them of an opportunity of hearing on merits. By this expression, we do not mean to suggest that in every case the court should always condone the delay. All that we wish to say is that by and large, the approach of the court should be to ensure that substantial justice is done to parties by affording them an opportunity of hearing on the merits of the case."

Viewing that the delay in filing the appeal before the Tribunal should have been condoned, the High Court condoned the delay.

As for additional ground taken by the Tribunal to dismiss the appeal, the High Court observed -

"11. So far as the other ground relating to signing of appeal by one staff member of the appellant etc. is concerned, the same too, in our view, should not have been made the basis to dismiss the appeal. In such circumstances also the Tribunal could have granted an opportunity to writ petitioners to rectify the defects."

Holding that it cannot concur with the reasoning and conclusion of the Tribunal, the order was set aside and the Writ Petition was allowed.

In fine, the appeal filed by the petitioner before the Tribunal is held to be within the time and is accordingly restored to its file for hearing on merits.

In passing: Also see 2013-TIOL-865-HC-MAD-CESTAT.

(See 2014-TIOL-856-HC-GUW-CX)