TMI Blog2013 (12) TMI 1300X X X X Extracts X X X X X X X X Extracts X X X X ..... An indolent without being vigilant, losses his right. A man of prudence and diligence does not prefer to prejudice his interest seeking remedy of appeal belatedly. While a vigilant only gets leniency for condonation of delay, an indolent fails to get such consideration - there is no ground in condonation of delay that too a length of 1234 days in absence of bonafide - Condonation denied. - C/3836/2012 - - - Dated:- 5-11-2013 - Archana Wadhwa And Manmohan Singh, JJ. For the Appellant : None For the Respondent : Shri P K Sharma, AR PER: Manmohan Singh The Applicant has filed this application for condonation of delay of 1236 days in filing the appeal. 2. None appeared for the appellant. 3. The applicant in their COD application have contended that during the relevant time i.e. June 2007 to September 2007 when the Appellant was working as a 'merchant exporter', it claimed and availed duty drawback amounting to Rs.67,42,724/- (Paid to the Appellant) against 56 Shipping Bills on FOB value of Rs. 10,20,69,466/- and Rs. 4,92,889/- 4. The Customs department objected to the availing of drawback and the proceedings culminated into a show cause notice dated 20.08.2008. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court granted the liberty to avail the legal remedy available to the Applicant. They have now came to Tribunal. 10. The applicant have submitted that the delay has been totaled to 1236 days in filing the present appeal which is neither intentional nor willful, but due to the reasons mentioned above which were beyond the control of the Applicant and occurred in good faith. That no prejudice shall be caused to the respondents in case the delay of 1236 days is condoned and the appeal is heard on merits. They contended that it was due to bonafide faith, that they approached Tribunal. 11. They have relied upon decision of the Hon'ble Apex Court in the case of Collector, Land Acquisition, Anantnag and another Vs. Ms. Katiji and Others 1987(28) E.L.T. 185 has laid down the principal of liberally approach for condonation of delay. 12. Ld. DR appearing for the Revenue submits that there is glaring delay of 1236 days. This is not justifiable at all. By no stretch of imagination, it can be said that they were bonafide prosecuting remedy before a wrong forum knowing fully well about lack of jurisdiction thereof There was total absence of good faith, and relied upon the para 23 of the ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itions filed by them be treated as appeals under Section 35, two of the appellants filed applications for recall of that order. No doubt, the learned Single Judge accepted their prayer and the Division Bench confirmed the order of the learned Single Judge but the manner in which the appellants prosecuted the writ petitions before the Delhi High Court leaves no room for doubt that they had done so with the sole object of delaying compliance of the direction given by the Appellate Tribunal and, by no stretch of imagination, it can be said that they were bona fide prosecuting remedy before a wrong forum. Rather, there was total absence of good faith, which is sine qua non for invoking Section 14 of the Limitation Act." 13. Matter has been examined with the assistance of learned DR. From the facts stated above, it is seen that basically this application is filed after a delay of 1236 days, abusing process of law knowing fully well that there was lack of jurisdiction of forums approached by appellant. Reliance was only placed on the decision of the Hon'ble Apex Court in the case of Collector, Land Acquisition, Anantnag and another Vs. Ms Katiji and Others 1987(28) E.L.T. 185. 14. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t conduct of appellant. Such view is fortified from the judgment of Apex Court in the case of Ketan Parikh 2012 (275) ELT 3 (S.C.). 17. Written submissions made by the appellants was examined. After rejection of their appeal by revisions authority, appellants lost remedy before Hon'ble High Court of Punjab Harayana. 18. In this regard it may be appreciated that guidance note preamble to Order-in-Original No. 34/ACE/3.3./2009 dated 06.4.2009 clearly mentions as under: "If, any person aggrieved by this order, may file an appeal against the orders to the Customs, Excise and Service Tax Appellate Tribunal. West Block-2. R.K. Puram, New Delhi within three months of the date of the receipt of this order and appeal should be stamped with the court of one rupee (Rs.01/-). The following papers should have been enclosed with the appeal: 1) Copy of Appeal. 2) Copy of the Order with stamp duty. 3) the stamp duty of Rs.1000/- (One thousand) is required, if the case under consideration is of Rupees five lakhs or less. 4) the stamp duty of Rs. 5000/- (five Thousand) is required, if the case under consideration is more than Rupees five lakhs but not exceeding fif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation prescribed by law. Laxity does not add to longevity to a remedy which exhaust with the passage of time following doctrine of resjudicate. Casual approach of appellant shows its scanty regard to law. Had there been bonofide, the appellant would have pursued its right with the Previsional Authority. But that has also not come to record. No vigilant attitude of appellant is visible from record. Length of deliberate delay cripples a litigant to be successful applicant without a bonafide cause. Painting a gloomy picture, a litigant causes prejudice to other side and that is one of the ways of abuse of process of law. When a litigant prefers to postpone his remedial measure without being vigilant and unmindful of the consequence of delay and neither before limitation nor after that, he is conscious of his right of remedy within limitation, he forgoes his remedy with the lapse of time. An indolent without being vigilant, losses his right. A man of prudence and diligence does not prefer to prejudice his interest seeking remedy of appeal belatedly. While a vigilant only gets leniency for condonation of delay, an indolent fails to get such consideration. 24. We are convinced that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ealable before the CESTAT. The appellants were however, granted liberty to avail the legal remedy available to them. Consequently the present appeal stand filed by the appellant along with stay petition and condonation of delay application. 29. The appellant, instead of filing an appeal before Tribunal, challenged the impugned order before Joint Secretary (Revision), well within the limitation period. The office of the Joint Secretary also accepted the said revision application, though provisionally. The office of the Joint Secretary being the expert body, should have been in knowledge of the fact that inasmuch as the impugned order was passed by Commissioner and not by Commissioner (Appeals), the revision applications were not maintainable. In spite of that the revision applications filed on 15.7.09 were dismissed only on 7.4.10. Even the order passed on 7.4.10 was not received by the appellant or by the Customs department till 2012. 30. Further, it is on record that customs department placed an inquiry in the office of Joint Secretary regarding the status of the case. From the said act on the part of the Customs department, it can be reasonably assumed that even Customs depar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... part of the appellant. Infact, I am of the view that if the appellant would have filed an appeal before the Tribunal, they were within their rights to file the stay application also. Inasmuch as the revision application was filed and there was no stay petition, Revenue was within its rights to initiate recovery proceedings against the appellant. As such, the appellant does not get benefited by filing a revision application before the Joint Secretary instead of filing an appeal. It is matter of record that even after passing of two years, Revenue did not initiate any recovery proceedings even in the absence of any stay order passed by the higher appellate forum. As such, it cannot be said that revision application was filed with an motive to delay the recovery proceedings. It is also on record that even the department was aware of the fact of filing of revision application before the Joint Secretary as it is only on their taking initiative with the office of Revision authority that the fact of dismissal of revision application came to light. In such a scenario to hold that the appellant filed the revision application with a malafide intention, which has resulted in process of abu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the present case, we note that justice-oriented approach has to be adopted and it cannot be said, in absence of any evidence on record, that there was any intent on the part of the appellant, to file revision applications instead of filing appeals before Tribunal so as to abuse the process of law. 36. The issue as to that whether the period during which the appeal was lying before the wrong forum has to be excluded from the limitation period is a well settled issue. Tribunal in the case of Cairn Energy India Pvt. Ltd. vs. CCE, Visak.II [2008 (221) ELT 440 (Tri-Bang)] by taking note of Supreme Court decision in the case of Pasupati Overseas Pvt. Ltd. vs. Collector of Customs [1996 (83) ELT 249 (SC)] and Punjab and Haryana High Court decision in the case of Vijay Brothers vs. Union of India [1989 (40) ELT 51 (P H)] has held that section 14 of the Limitation Act, 1963 can be invoked to plea exclusion of time spent in prosecuting diligently and in bona fide proceedings before a wrong forum. Similarly in the case of True Woods Pvt. Ltd. vs. CCE, Visakhapatnam [2008 (232) ELT 335 (Tri-Bang)], delay caused in pursuing alternative remedy before Settlement Commission was held to be a suf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... during pendency of revision application, themselves finding out the status of the revision application etc, are indicative of the fact that filing of revision application before the Joint Secretary are covered with the expression 'pursuing the prosecuting diligency and bona fide proceedings before wrong forum. The time spent therein and the subsequent non receipt of order by the appellant has to be held as sufficient reason for condonation of delay, especially keeping in minds the principles laid down by the Hon'ble Supreme Court in the case of Collector, Land Acquisition Anantnag and another vs. Mst. Katiji and others cited supra. No appellant should be ousted from on the technical issue of limitation at the threshold itself by refusing to condone the delay, unless there are evidence reflecting upon his malafide conduct and intention to do so with a motive as was in the case of Ketan V Parekh. 38. In view of the above, I condone the delay in filing the present appeal and allow COD application. Archana Wadhwa, J. Difference of opinion Whether the COD application is to be rejected by refusing to condone the delay of 1236 days, as observed by Member (Technical) OR The COD ..... X X X X Extracts X X X X X X X X Extracts X X X X
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