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TMI Blog2015 (12) TMI 1095X X X X Extracts X X X X X X X X Extracts X X X X ..... for non-prosecution. The applicants also filed applications for condonation of delay (in short COD) of filing the applications for restoration of appeals. 2. The Learned Advocate on behalf of the applicants submits that the Honble Bombay High Court in the case of Kirtikumar Jawaharlal Shah vs Union of India 2012 (282) E.L.T. 217 (Bom.) observed that the period for filing the application for restoration of appeal is 3 months as per the provisions of filing of the appeal under the Central Excise Act, 1944. He submits that the applicants filed these ROA on 23.01.2015. So, they have filed COD applications for condonation of delay of ROAs. He drew the attention of the Bench, the relevant portion of the applications explaining the reason for d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Excise, Customs & Service Tax Surat-II that the Revenue already had initiated recovery proceeding in terms of the final order of the Tribunal. 4. After hearing both the sides and on perusal of the records, we find that the Tribunal by order dated 06.07.2010 dismissed the appeal for non-prosecution. For the purpose of proper appreciation of the case, we reproduce the relevant portion of the said order:- "On matter being called neither anybody appeared nor is there any adjournment request. We note from records that the matter has been coming up on board repeatedly and was being adjourned in the interest of justice. We also note that the matter has already been dismissed once for non-prosecution vide Order No.A/2235-2236/WZB/AHD/2007 dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the Appellant nor the counsel for the Applicant was aware about the order passed on 06.07.2010. 9. The appellant submits that on around, July 2012 director of the appellant visited the registry of the Tribunal to ascertain the status of the case as neither the counsel nor the appellant received any further hearing notice nor any order after 06.07.2010. 10. It is on around July 2012 that the Director of the appellant came to know about the dismissal order dated 06.07.2010 whereby the Honble Tribunal was pleased to dismiss the appeal for non-prosecution. 11. That since the factory was closed and there was a financial loss and other liabilities had incurred, the Director of the appellant was facing huge financial crisis and it was dif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d statement made in the applications, there was nothing to reflect on the difficulties faced by the appellants in presenting the applications for restoration of the appeals dismissed in the year 2002. The Tribunal also noted that no medical certificate showing serious illness of Shri Dariyani had been placed on record. Agreeing with the contention of the learned D.R. that even presuming that Shri Dariyani was not well, the applications could have been filed by the authorized representative, who was looking after the affairs of the company, the Tribunal observed that this was a clear case of laches on the part of the appellants and accordingly, held that delay of a huge period of seven years cannot be condoned and rejected the applications o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Hon'ble Supreme Court and High Court that the Tribunal has no power to dismiss the appeal for non-prosecution. We find force in the submission of the appellant. As the appeals of 2003, the appeals were adjourned on several occasions and nobody turned up on behalf of the appellant, and therefore, the Tribunal dismissed the appeals for non-prosecution on 06.07.2010. The Tribunal dismissed the appeals for non-prosecution and if the appellants would file application for restoration of appeal, it may be decided on merit. But, in the present case, we find that there is long delay of about 6 years for filing application of ROA. It is seen from the Letter dated 04.09.2015 of the Assistant Commissioner of Central Excise, Division-III, Surat-II, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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