Home Case Index All Cases Central Excise Central Excise + HC Central Excise - 2016 (1) TMI HC This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2016 (1) TMI 155 - HC - Central ExciseCondonation of delay in filing of appeal before the High Court - slackness on the part of the Advocate and department - It was asserted that the delay has been caused on account of slackness on the part of the earlier Counsel. A copy of the supplementary affidavit, that is alleged to have been prepared on 12.10.2015, has also been annexed with the supplementary affidavit, which indicates that the affidavit was to be signed by the Clerk of the Advocate. - This supplementary affidavit however, does not explain the delay as to why the appeal could not be filed from 12.6.2015 to 20.9.2015. However, since the allegations were serious, we directed the Registry to serve a copy of this affidavit to the earlier counsel of the department and requested him to file a reply. Held that:- we are constrained to observe that this kind of mud slinging between the representatives of the Department viz-a-viz their counsel posted at Allahabad is unwarranted. Dirty linen should not be washed in public. We are also constrained to observe that the action of the Department in replacing the counsel in the facts and circumstances of the given case is unwarranted. No doubt, it is the prerogative of the Department to engage their counsel. It is also their prerogative to change their counsel but not in the manner in which it was done in the instant case. We are also constrained to observe that when an official of the Department was present in the office of the counsel for preparation of the affidavit on 12.10.2015, the said official or Officer was required to also sign the affidavit and not to delegate the filing of the affidavit to the Clerk of the learned counsel. It is not the duty of the Clerk to file an affidavit on behalf of the Department. The Court can read between the lines and see the fine print that comes out. From the affidavit, it is also clear that no valid explanation has been given explaining the delay. Prima facie, it appears that a certified copy of the impugned order was not given to the learned counsel on 07.07.2015 and what was sent was an attested copy of the order, which was not permissible. On the other hand, we also are constrained to observe the slackness on the part of the Advocate in not pursuing the matter diligently. The learned counsel failed to intimate the Department about the defect in writing though he may have intimated them orally. However delay condoned.
|