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2019 (5) TMI 668 - HC - Service TaxCondonation of delay - failure to remove office objections within stipulated time - delay of 619 days in filing the Notice of Motion - Revenue has put the blame on advocate representing the Department for such delay - HELD THAT - There was a delay on the part of the Officers of the Department in contacting another junior panel Advocate appointed. The said panel Advocate forwarded a notice of motion for signature. Instead of returning the notice of motion duly signed, a modified notice of motion was sent to the junior panel Counsel who raised an objection to the act of sending modified Notice of Motion. There is no explanation as to why such a modified notice of motion was sent to the advocate. Firstly, there is a default on the part of the Department as objections were not removed. Secondly, the Department refused to pay even a single farthing to the junior Counsel who was engaged in August, 2017 to file a notice of motion for restoration. We fail to understand as to how the Department expects the Advocate to file a notice of motion for restoration to get the appeal restored and to remove the office objections in the appeal, without receiving single farthing from the Department even for out of pocket expenses. There is a complete justification for the said advocate who refused to file the notice of motion without receiving requisite amount as mentioned in the bill submitted by him. The allegations made against the said junior Counsel engaged in August, 2017, are most unfortunate and ought not have been made. There is a delay at every stage on the part of the Department. No case is made out for condonation of delay and for restoration of the appeal - Notice of Motion dismissed.
Issues:
1. Delay in filing Notice of Motion for restoration of appeal. 2. Allegations against the junior Counsel for not taking steps for restoration. 3. Department's refusal to pay the junior Counsel for out of pocket expenses. 4. Conduct of the Department in prosecuting the appeal. 5. Condonation of delay and restoration of the appeal. Analysis: 1. The High Court examined the delay in filing the Notice of Motion for restoration of the appeal. The applicant took over 4 months to file a fresh notice, leading to a delay of 619 days. The Court noted the reasons for delay and the subsequent actions taken by the applicant in this regard. 2. Allegations were made against the junior Counsel appointed by the Department for not taking steps to restore the appeal. The Court analyzed the correspondence between the junior Counsel and the Department, highlighting the expectations of the Department and the responses of the Counsel regarding the restoration process. 3. The Department's refusal to pay the junior Counsel for out of pocket expenses was a crucial aspect of the case. The Court scrutinized the communication between the Counsel and the Department, emphasizing the necessity of payment for the Counsel's services in filing the Notice of Motion for restoration. 4. The Court assessed the conduct of the Department in prosecuting the appeal, noting delays and discrepancies in communication and actions taken by the Department officials. The Court highlighted the negligence on the part of the Department and criticized the attempt to shift blame onto the panel Advocate. 5. Ultimately, the Court concluded that no case was made out for condonation of delay and restoration of the appeal. The Court dismissed the Notice of Motion based on the conduct of the applicant and the Department. Additionally, the Court directed the Prothonotary and Senior Master to inform the Central Board of Indirect Taxes and Customs about the handling of the matter, emphasizing the need for remedial action to avoid similar dismissals in the future.
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