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2022 (6) TMI 163 - AT - Service TaxRecalling of order - Matter was heard ex-parte - Condonation of delay in filing present application - sufficient compliance of the provisions of Section 37C(1)(a) of Central Excise Act 1944 or not - Restoration of appeal under Rule 41 of CESTAT Rules 1982 - HELD THAT:- In the present application, appellant has taken the plea of change of address in the year 2012-13 itself. The perusal of the appeal shows that the address given in the appeal is the one which is mentioned to have been closed but on the entire record there is no information provided by the appellant about the closure of its registered premises. The notices have rightly been issued by the department / registry at the available addresses. Since appellant was aware of all the proceedings, it was his duty to follow up his appeal. The appeal remained pending before this Tribunal since the year 2012 to the year 2017. The entire application is miserably silent about any effort of the appellant to enquire about the status of his appeal. The said conduct of the appellant is an outcome of absolute negligence and omission of the act what appellant was supposed to perform after filing of his appeal during said period of five years. It stands clear that lack of bonafides and the apparent negligence on part of the party seeking relief is a significant and relevant fact to be considered while dealing with the situation as one in hand. Hon’ble Apex Court in ESHA BHATTACHARJEE VERSUS MANAGING COMMITTEE OF RAGHUNATHPUR NAFAR ACADEMY AND OTHERS [2015 (1) TMI 1053 - SUPREME COURT] has held that even the affidavit and supporting certificate may not merit consideration - the application in hand itself has been filed after substantial delay. The appellant is already been observed to be negligent and thus he is held to not to be entitled for the discretionary relief. In the given circumstances, under no stretch of imagination there could be a justification to file an application at the sweet will of the applicant. Further, as per applicant himself, the Department has already acted upon the final order and has issued a recovery notice to the appellant which is mentioned as the date of knowledge of appellant about the impugned final order. But it is opined that since the Revenue has already acted upon the impugned final order and has already taken steps to implement the same there seems no justification nor even scope to recall such a final order especially when the proceedings were well in the notice of the applicant since first round of litigation in the impugned matter. There are no justification in the prayer of the appellant - application dismissed.
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