TMI Blog2010 (1) TMI 385X X X X Extracts X X X X X X X X Extracts X X X X ..... the applicants. It is also to be noted that the appeal sought to be filed by the appellants also discloses the same address which was disclosed in the appeal filed in 2004. It is not the case that the CESTAT has sent the defect memo on the address different from the one disclosed in the appeal memo. For the reasons stated above, therefore, we find no case having been made out for condonation of delay and hence the application is dismissed. - E/2198/2009 - 101/2010-EX(PB), - Dated:- 4-1-2010 - Justice R.M.S. Khandeparkar, President and Shri M. Veeraiyan, Member (T) Shri K.K. Anand, Advocate, for the Appellant. Shri Virender Choudhary, DR, for the Respondent. [Order per : Justice R.M.S. Khandeparkar, President (Oral)]. - Hea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al papers were received by the applicants on 24th February, 2009 with reference to the letter dated 6th February, 2009. In the letter dated 20th February, 2009 which was received along with the appeal papers, it was disclosed that the appeal was received in the CESTAT Office on 23rd August, 2004 under the following defects : (1) In the stay application, verification was not signed by the appellant. (2) Attested copies of Order-in-Original and Order-in-Appeal were not filed. (3) Certified copy (attested by the Department) or in original Order-in-Appeal in first set was not filed by the appellant. It is also the case of the applicants that, the applicants had been seriously pursuing the matter and had done everyth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not in compliance with the requirement of CESTAT (Procedure) Rules prescribed for filing the appeals under the Central Excise Act, 1944. It is not in dispute that the applicants were issued with a memo dated 27th September, 2004 bringing to their notice the defects and asking them to remove the same. In the application, there is no explanation as to why the I defects were not removed accordingly. It is not the case of the applicants that the applicants, for any valid reason, were prevented from removing the defects which were pointed out to them under memo dated 27th September, 2004. 8. The contention that (our memos dated 3rd January, 4th April, 4th July and 21st October of 2005 were not received by the applicants for the reasons beyon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not registered, consequences thereof are that the applicants have failed to pursue the appellate remedy in the manner as is required under the law. Failure on the part of the applicants to pursue the remedy in the manner as required under the law and that too after having made them aware under memo dated 27th September, 2004, by no stretch of imagination be a sufficient cause for condonation of delay in filing the appeal thereafter. Besides, once an appeal is filed, one wonders how the applicants can have a second opportunity to file the appeal. Neither the procedure permits such an opportunity to the aggrieved party nor the Tribunal can allow such a party to file appeal for the second time as it would virtually result in laying down not o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot in accordance with the [Customs, Excise and Service Tax Appellate Tribunal (Procedure) Rules, 1982]. The Officer so authorised may, however, allow the documents to be refiled after removal of the defects in the specified time. On representation the Bench concerned may in its discretion either accept the memorandum in terms of 11(1) or reject the same in terms of 11(2) but the appeal/application may not be restored to its original number unless the Bench allows it to be so restored on sufficient cause being shown." Rule 11, undisputedly, discloses a provision empowering the President to authorize any officer of the Tribunal to return any memo of appeal which is filed not in accordance with the CESTAT (Procedure) Rules. That itself, ho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , merely because the original appeal memo was returned to the applicants along with the letter dated 20th February, 2009, that itself would be a sufficient ground to file the appeal for the second time. 14. In any case, there being no sufficient cause disclosed for condonation of delay of four years and six months, even on that count there is no case made out for condonation of delay. 15. It is pertinent to note that, though it is sought to be contended that the factory was closed in 2000, the show cause notice dated 18th October, 2002 was issued on the same factory address and was duly received by the applicants. Similarly, on completion of adjudication proceedings consequent to the said show cause notice, the order dated 29th August, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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