By TIOL News Service

RANCHI, AUG 26, 2015: THE petitioner had filed an application before the CESTAT for condonation of delay of 536 days but the same was dismissed on the ground that there was no reasonable ground for the condonation.

Before the High Court, the petitioner submitted that -

+ There was no intentional delay on their part - Inasmuch as the o-in-o was passed on 01.04.2011 and received on 05.04.2011 confirming a ST demand of Rs.1.55 crores and imposing penalty; thereafter they engaged an Advocate and papers were handed over to him on 09.04.2011; memorandum of appeal was prepared and the petitioner signed it on 30.05.2011 but thereafter the Advocate had not signed the appeal. Meanwhile, a demand letter dated 13.09.2012 was received from the Supdt. CE., Jaipur and later the petitioner received the appeal papers from the office of the Advocate on 30.11.2012.

+ Affidavit sworn by partner of the petitioner stating in detail the chronological sequence of events that led to the alleged delay in filing the appeal was not appreciated by the CESTAT.

+ Certificate given by the junior of the erstwhile Advocate was not appreciated. It is mentioned that due to illness of the Advocate the appeal could not be filed and later the Advocate expired. After receipt of papers on 30.11.2012, the petitioner filed appeal on 24.12.2012.

+ There was a delay of 536 days in preferring the appeal which was explained showing aforesaid reasons before the CESTAT but the same was not properly appreciated and inspite of there being reasonable grounds, application for condonation of delay was rejected.

The High Court after going through the facts culled by the petitioner relied upon the apex court decision in IMPROVEMENT TRUST, LUDHIANA vs. UJAGAR SINGH AND OTHERS - 2010-TIOL-46-SC-LMT and condoned the delay on the following reasoning -

+ It appears that there is no fault lying on the part of this petitioner at all.

+ In the facts of the present case also, we find no negligence on the part of the petitioner, who took proper and timely steps and the delay was unintentional and occurred only due to lack of communication.

+ Appeal should have been decided on merits and not on mere technicalities - it appears that there were reasonable grounds for condonation of delay, which were not appreciated by the CESTAT, Kolkata and the Appeal was dismissed without going into its merit. But, since a huge liability of Tax and penalty have been imposed upon this petitioner vide the Order in Original and therefore, the points taken in the Order in Original should have been decided on merits.

+ Litigants should not suffer due to the fault of their Advocate - It appears that in the present case all possible steps were taken by the appellant and had there been a timely intimation by its Advocate, delay would not have occurred and, therefore, the appeal should not have been dismissed merely on the ground of delay because a litigant should not suffer because of ill health of the Advocate.

The delay was condoned and the appeal was restored to the original file of CESTAT. The petitioner was directed to deposit the cost of Rs.35,000/- with the Commissioner, CE & ST, Jamshedpur within three weeks.

(See 2015-TIOL-1955-HC-JHARKHAND-ST )