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2015 (8) TMI 1016 - JHARKHAND HIGH COURT

2015 (8) TMI 1016 - JHARKHAND HIGH COURT - 2015 (40) S.T.R. 667 (Jhar.) - Condonation of delay - Inordinate delay of 536 days - Delay due to ill health of advocate - Held that:- the reasons stated by this petitioner for the delay, it appears that there were reasonable grounds for condonation of delay, which were not appreciated by the CESTAT, Kolkata and the Appeal [2015 (8) TMI 1015 - CESTAT KOLKATA] preferred under Section 35 B (3) of the Central Excise Act, 1944, was dismissed without going i .....

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not suffer because of ill health of the Advocate - Delay condoned. - W.P.(T) No. 2162 of 2014 - Dated:- 2-7-2015 - MR. D.N. PATEL AND MR. RATNAKER BHENGRA, JJ. For the Appellant: Mr. Sumeet Gadodia For the Respondent: Mr. Deepak Roshan JUDGEMENT Per: D N Patel: 1. This writ petition has been preferred against the impugned order dated 4th March, 2014, passed by the Customs, Excise & Service Tax Appellate Tribunal, Eastern Zonal Bench, Kolkata (Hereinafter to be referred to as 'CESTAT, Ko .....

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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, 2011. Huge liability of approximately ₹ 1, 55,00,000/ has been imposed upon this petitioner towards service tax and a penalty of approximately ₹ 1.60 crores has also been imposed. The petitioner, t .....

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kar on 30th November, 2012. 3. Affidavits sworn in by the partner of the petitioner not appreciated by the CESTAT , Kolkata : It is submitted by learned counsel for the petitioner that an affidavit sworn in by one of the partners of the petitioner firm, stating in detail the chronological sequence of events that led to the alleged delay in filing the appeal, has also been produced before the CESTAT, Kolkata. 4. Certificate given by the junior to the erstwhile Advocate of the petitioner was not a .....

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0th 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 .....

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ay be condoned and appeal preferred by this petitioner along with the stay application may be heard on merits and the petitioner ensures that he will sought for no unnecessary adjournment and cooperate with the CESTAT, Kolkata in the matter. Submissions made on behalf of the respondents: 5. Counsel for the respondents submitted that no error has been committed by the CESTAT, Kolkata in dismissing the delay condonation application as there is no reasonable explanation of delay of 536 days in pref .....

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arkar , we, hereby, condone the delay in 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 he .....

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e case of IMPROVEMENT TRUST, LUDHIANA vrs. UJAGAR SINGH AND OTHERS reported in (2010) 6 SCC 786, relevant paragraph of which (para 16) is quoted hereunder: 16 . While considering the application for condonation of delay no straitjacket formula is prescribed to come to the conclusion if sufficient and good ground have been made out or not. Each case has to be weighed from its facts and circumstances in which the party acts and behaves. From the conduct, behaviour and attitude of the appellant it .....

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ble grounds for condonation of delay, which were not appreciated by the CESTAT, Kolkata and the Appeal No. S.T. 543/12 (Annexure 7 to this petition) preferred under Section 35 B (3) of the Central Excise Act, 1944, was dismissed without going into its merit. But, Since a huge liability 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 rea .....

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y date. It is pertinent to point out the unless mala fides are writ large on the conduct of the party, generally as a normal rule, delay should be condoned. In the legal arena, an attempt should always be made to allow the matter to be contested on merits rather than to throw it out on such technicalities." (Emphasis supplied) (III) Litigants should not suffer due to the fault of their Advocate : It appears that in the present case all possible steps were taken by the appellant and had ther .....

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