TMI Blog2014 (12) TMI 862X X X X Extracts X X X X X X X X Extracts X X X X ..... annoyed on the conduct of the petitioner which we have already extracted above. In fact, we find that by jumbling various dates and events, the petitioner was attempting to confuse this Court as if there was a bona fide reason for the delay. After thorough examination and wasting the valuable time of this Court for more than 1 = hours, we are able to find that there is absolutely no justification for the delay of 1409 days and the entire exercise seems to be to further scuttle the Department's demand for duty, penalty and interest. Petitions for condonation of delay appear to be a dilatory tactics and there is no bona fide reason for the inordinate unexplained delay of 1409 days. In any event, the explanation given appears to be self-serving and to defeat the adjudication process. The time of the Original Adjudicating Authority, the Appellate Tribunal and this Court is wasted in this process, which we find lack bonafides on the part of the petitioner. The delay of 199 days in filing the appeal as against the order of the Tribunal dated 27.2.2013 also is based on the same plea and none of the documents relied upon in the typed set has been enclosed and the delay has been casu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion. The Adjudicating Authority observed that even though the basic requirement of principles of natural justice has been observed, the petitioner has failed to avail the opportunity. Hence, he passed an order dated 29.10.2004 demanding duty invoking proviso to Section 11A(1) of the Central Excise Act, 1944, penalty under Section 11AC of the Central Excise Act, penalty under Rule 173Q and Rule 25 of the Central Excise Rules together with interest under Section 11AB of the Central Excise Act, 1944. It appears, that as against this order, an appeal was preferred before the Commissioner (Appeals) and it is stated that the Appellate Commissioner vide order dated 13.4.2005 confirmed the adjudication order on merits in Order in Appeal No.48 of 2005. 5. The petitioner, thereafter, filed an appeal before the Tribunal, which, by order dated 06.10.2005 in Order No.1419-1421 of 2005 set aside the order of the Adjudicating Authority as well as the first Appellate Authority and allowed the appeal by way of remand. The Tribunal directed the original authority to pass fresh orders of adjudication in accordance with law after giving the parties a reasonable opportunity of obtaining copies of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... missioner informed them that after taking copies of the documents, the petitioner will be intimated vide letter dated 04.10.2006. (That letter of the Commissioner has not been enclosed). In paragraph 16 of the affidavit, the petitioner states that there was no response from the Assistant Commissioner despite his promise vide letter dated 04.10.2006. Hence, the petitioner sent reminder letter dated 5.2.2007 (not enclosed in the typed set). Thereafter, the petitioner states that he moved an application before the Tribunal on 30.6.2008 under Rule 41 of the CESTAT (Procedure) Rules, 1982. The Tribunal was very much upset about the conduct of the petitioner approaching the Tribunal over and again for such a trivial matter wasting the valuable time of the Tribunal. The relevant portion of the order of the Tribunal dated 30.9.2008 reads as follows: 4. We are thoroughly unpleasant over this trend of parties approaching the Bench over and again with prayers of the kind made in the present applications. The valuable time of this Tribunal cannot be occupied for such purposes. 7. The Tribunal, thereafter, by order dated 30.09.2008 in Miscellaneous Order Nos.412 to 414 of 2008, directe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9, in which the conduct of the petitioner could be seen from paragraph Nos.7,8,9,10 and 11, which reads as follows: 7) V.K. Palappa Nadar Firm and VKPK Arivuthurai Brothers vide their reply dated 6.7.2006 stated that the denovo orders have necessarily to be passed by the Additional Commissioner only. In reply to this, a notice of hearing dated 14.7.2006 informing that as per section 12 E(1) of the Central Excise Act, 1944, a Central Excise officer may exercise the powers and discharge the duties conferred or imposed under the Central Excise Act on any other officer who is subordinate to him, as no regular Additional Commissioner has been posted to Tirunelveli Commissionerate, Commissioner is exercising the powers of the Additional Commissioner under the above said provision of Central Excise Law. Further, the parties were requested to specify the name of the documents they wish to inspect and they were permitted to inspect all the records listed at pages 175 to 164 of the paper boob (Volume No : X) filed in Appeal advance intimation of the records proposed to be inspected and proposed date of visit. They were again intimated to appear on 23.08.2006 at 1100 Hrs. before the Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l letter is not a relied upon documents and hence the same cannot be supplied as per the decision of the Hon'ble Supreme Court in the case of R.K.Mill Board (P) Ltd., Vs. Commissioner reported in 2003 (139) ELT A 085 (SC) 11) They were also requested to appear before the Additional Commissioner on 22.4.2008 at 1.00 Hrs. for personal hearing. The parties, vide their reply dated 16.4.2008 stated that the approval of the Commissioner for the SCN was an open document and they are entitled for a copy of the approval and in the absence of its, it is not practicable for them to appear for PH and did not attend the personal hearing. 11. From the original order, it could be seen that another personal hearing was granted on 16.7.2008 in addition to the earlier personal hearing. Since the petitioner did not appear, further hearing was fixed on 23.7.2008, for which also the petitioner neither replied nor appeared and hence, as a last chance, further personal hearing was granted on 13.8.2008 and even on that date, the petitioner did not appear but sent a letter dated 6.8.2008 questioning the jurisdiction of the authority. 12. We are pained to note that the Adjudicating Authority, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... val letter. 11-05-2004 Attested copies of 260 TRMS transport documents were supplied to the assessee by RPAD. It was reiterated that Commisssioner s approval letter was not relied upon document and reply to show cause notice was requested 22-05-2004 11-06-2004 Party requested for the supply of copies of the remaining 11 transport documents. He again insisted for the supply of Commissioner s approval letter. 25-06-2004 [THIRD] P.H. was fixed and reply to show cause notice was requested 08-06-2004 [recd on 09 -07-2004] M/s. V.K.P.K. Aruvithurai Brothers, the second party to the SC asked for the supply of copies of the 271 transport documents. 08-07-2004 The party sent three letters. [a] Vide one letter, they asked for the supply of copies of the remaining 11 documents in connection with SCN No.50/2001. [b] Vide another letter, ;they AGAIN asked for the supply of copies of all the 271 TRMS transport documents, in connection with SCN No.51/2001. [c] Vide yet another l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -2008 The assessee requested for copy of Commissioner s approval letter for issuing SCN 03-04-2008 Informed the assessee that as Commissioner s approval is not a relied upon document, it will not be supplied. 08-04-2008 Intimation of PH fixed on 22-04-2008 by ADC 16-04-2008 The assessee informed that they would attend the personal hearing only after receipt of all relied upon documents and non relied upon documents and on cross examining the mahazar witnesses, deponents of the statements and the investigating officers. 10-07-2008 Corrigendum to SCN for change in adjudicating authority intimated to the parties. 11.07.2008 Parties were requested to appear for P.H. on 16.07.2008 before the Joint Commissioner. 16-07-2008 Letter was sent to the Parties asking them to appear for P.H. on 23.07.2008 28-07-2008 Another letter sent requesting them to appear for P.H. on 13.08.08. 11.08.2008 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order. He has given a clear finding in paragraph 22.2 of the order, which reads as follows: that the parties have taken the copies of documents from the Department in the second week of February, 2002 and the same were produced to him and that the documents are contained in four box files and he need enough time to go through the voluminous records and requested for more time to file their reply. This proves beyond doubt that the parties have received the copies of all the relied upon documents during February 2002. 14. Accordingly, the Adjudicating Authority proceed to pass the order of adjudication confirming the demand of duty. The relevant portion of the order reads as follows: ORDER 1. I confirm the demand of duty amount of ₹ 38,78,141/- (Rupees Thirty eight lakhs seventy eight thousand one hundred and forty one only) payable on the illicitly cleared chewing tobacco during the period 1.11.1996 to 07.06.2001 under the proviso to Section 11A(1) of CEA, as demanded in show cause notice dated 4.12.01 from M/s.V.K.Pallappa Nadar firm, Dhalavaipuram. 2. I impose a penalty of ₹ 38,78,141/= (Rupees Thirty eight lakhs seventy eight thousand one hundred an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ). The contentions advanced on behalf of the applicants that they have not been supplied with the necessary documents are being disputed by the department vehemently. In fact, it has been stated that voluminous copies of documents have been supplied to the applicants. It has also been contended on behalf of the department that the impugned orders have been passed only relying on the documents which have been provided to the applicants. It has also been submitted before us on behalf of the department that all the documents which could not be supplied to the applicants have not been relied upon while passing impugned orders. 8. Under the circumstances, we are of the view that if the applicants are aggrieved by the impugned orders they should approach the first appellate authority by way of filing appeals as provided under the statute, who can look into their grievances including the grievances regarding alleged non supply of documents and alleged non compliance of the directions of the Tribunal. We see no necessity whatsoever to entertain these applications directly which have been filed before the Tribunal bypassing the normal channel of appeals provided under the statute. Accord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 35 makes the position clear that the appeal has to be preferred within three months from the date of communication to him of the decision or order. However, if the Commissioner is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of 60 days, he can allow it to be presented within a further period of 30 days. In other words, this clearly shows that the appeal has to be filed within 60 days but in terms of the proviso further 30 days time can be granted by the appellate authority to entertain the appeal. The proviso to sub-section (1) of Section 35 makes the position crystal clear that the appellate authority has no power to allow the appeal to be presented beyond the period of 30 days. The language used makes the position clear that the legislature intended the appellate authority to entertain the appeal by condoning delay only upto 30 days after the expiry of 60 days which is the normal period for preferring appeal. Therefore, there is complete exclusion of Section 5 of the Limitation Act. The Commissioner and the High Court were therefore justified in holding that there was no power to condone the delay after the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e first instance, the Tribunal showed some indulgence calling upon the parties to give relied upon and unrelied upon documents, but after the first round of litigation, we find that the petitioner seems to be harping on the same issue again and again much to the annoyance of the Original Adjudicating Authority, who passed the order on 17.12.2009 as well as the Tribunal, who had to suffer the consequence of repeated application under Rule 41 of the CESTAT Procedure Rules. The Tribunal was very much annoyed on the conduct of the petitioner which we have already extracted above. In fact, we find that by jumbling various dates and events, the petitioner was attempting to confuse this Court as if there was a bona fide reason for the delay. After thorough examination and wasting the valuable time of this Court for more than 1 = hours, we are able to find that there is absolutely no justification for the delay of 1409 days and the entire exercise seems to be to further scuttle the Department's demand for duty, penalty and interest. 22. The present Petitions for condonation of delay appear to be a dilatory tactics and there is no bona fide reason for the inordinate unexplained delay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iled the above C.M.A. against final order No.40080 of 2013 dated 27.02.2013 and the same may be treated as part and parcel of this affidavit. 28) The present appeal is filed challenging the Final Order No.40080 of 2013 dated 2013 dated 27.2.2013. In the meantime there is a delay of days in filing the appeal is occurred. The delay is neither wilful nor wanton but only due the fact that the above said proceedings periods are excluded the present appeal is in time. Hence the petitioner request this Hon'ble Court may be pleased to condone the delay 199 days in filing the appeal. If the delay is not condoned the petitioner will be put to irreparable loss and untold hardship. It is relevant to state that the petitioner prosecuting the above cases on the bonafide belief that he will get a remedy before the lower authorities, however the petitioner efforts are went in vain. 24. In both the cases, we find that the plea for condonation of delay is not bona fide, but with the defiant intention to delay the process of recovery. We are constrained to dismiss both the petitions with cost. 25. Learned counsel appearing for the petitioner persuaded this Court to accept his plea that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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