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TMI Blog2015 (8) TMI 1016X X X X Extracts X X X X X X X X Extracts X X X X ..... Application No. S.T./MISC/496/2012, filed for condonation of delay of 536 days in filing Appeal No. S.T.543 of 2012, was dismissed by the CESTAT, Kolkata for there being no reasonable ground for condonation of delay and hence, the stay petition, bearing Stay Petition No. SP 1216 of 2012 and Appeal No. ST 543 of 2012 were also dismissed and therefore, appellant of the said appeal has preferred this writ petition. Submission made on behalf of the petitioner 2. No intentional delay on the part of the petitioner : Counsel for the petitioner submitted that the Order in Original : 10/S.Tax/Commr/2011 was passed by the Commissioner, Central Excise & Service Tax, Jamshedpur on 1st April, 2011, which was received by this petitioner on 5th April, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his illness the papers could not be completed and appeal could not be filed. Thereafter, papers were returned. Said Advocate R.N. Sarkar later expired on 12.11.2013. Thus, after receipt of the papers on 30th November, 2012, immediately this petitioner appointed Shri Rajiv Ranjan Mittal and Shri Arvind Modi on 2nd December, 2012. They immediately prepared memorandum of appeal in Form ST-5. The memorandum along with petition for condonation of delay and stay petition was signed by this petitioner on 23rd December, 2012 and the appeal was filed before CESTAT, Kolkata on 24th December, 2012. Thus, there was a delay of 536 days in preferring the appeal under Section 35 B (3) of the Central Excise Act, 1944, which was explained showing aforesaid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filing the appeal for the following reasons: Reasons : (I) No fault lying on the part of the petitioner : it appears that there is no fault lying on the part of this petitioner at all. Order in Original was received by the petitioner on 5th April, 2011. The papers to prefer appeal was handed over to the Advocate R.N. Sarkar on 9th April, 2011, who prepared a memo of appeal, which was signed by the petitioner on 30th May, 2011 and thereafter, due to ill health of Advocate R.N. Sarkar, papers were returned in the month of November, 2012. Immediately, this petitioner engaged Shri Rajiv Ranjan Mittal and Shri Arvind Modi on 2nd December, 2012, who prepared memo of appeal in Form ST-5 immediately and thereafter papers were signed by this petit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Tax and penalty have been imposed upon this petitioner vide the Order in Original and therefore, in our view, the points taken in the Order in Original should have been decided on merits. To supplement this reasoning, we again refer to the aforesaid decision, i.e. the decision rendered by the Hon'ble Supreme Court in the case of IMPROVEMENT TRUST, LUDHIANA vrs. UJAGAR SINGH AND OTHERS, para 19 of which is quoted hereunder: "19. In our opinion, the ends of justice would be met by setting aside the impugned orders and the matter is remitted to the executing court to consider and dispose of the appellant's objections filed under Order 21 Rule 20 CPC on merits and in accordance with law, at an early date. It is pertinent to point ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e here. No sooner the appellant came to know about the dismissal of its objection filed before the executing court, under Order 21 Rule 90 CPC it made enquiries and filed the appeal." (Emphasis supplied) 7. In the light of the aforesaid facts, reasons and judicial pronouncement, We, hereby, condone the delay of 536 days in preferring the appeal against the Order in Original and quash and set aside the order dated 4th March, 2014 passed by the CESTAT, Kolkata in Misc. Application No. ST/MISC/496 of 2012 filed in Appeal No. ST 543 of 2012. 8. Therefore, Appeal No. S.T./543/2012-DB and Stay Application No. ST/Stay/1216/2012 is restored to its original file with the same number before the CESTAT, Kolkata. 9. The delay is condoned with a cos ..... X X X X Extracts X X X X X X X X Extracts X X X X
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