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Commissioner of Central Excise, Customs And Service Versus M/s Ashwani And Co. And 5 Others

2016 (1) TMI 155 - ALLAHABAD HIGH COURT

Condonation of delay in filing of appeal before the High Court - slackness on the part of the Advocate and department - It was asserted that the delay has been caused on account of slackness on the part of the earlier Counsel. A copy of the supplementary affidavit, that is alleged to have been prepared on 12.10.2015, has also been annexed with the supplementary affidavit, which indicates that the affidavit was to be signed by the Clerk of the Advocate. - This supplementary affidavit however, doe .....

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ublic. We are also constrained to observe that the action of the Department in replacing the counsel in the facts and circumstances of the given case is unwarranted. No doubt, it is the prerogative of the Department to engage their counsel. It is also their prerogative to change their counsel but not in the manner in which it was done in the instant case.

We are also constrained to observe that when an official of the Department was present in the office of the counsel for preparatio .....

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py of the impugned order was not given to the learned counsel on 07.07.2015 and what was sent was an attested copy of the order, which was not permissible.

On the other hand, we also are constrained to observe the slackness on the part of the Advocate in not pursuing the matter diligently. The learned counsel failed to intimate the Department about the defect in writing though he may have intimated them orally.

However delay condoned. - CENTRAL EXCISE APPEAL DEFECTIVE No. - .....

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, thereafter, it was beyond time by 20 days. Further, the Stamp Reporter pointed out a defect, namely that the certified copy of the impugned order of the Tribunal was not filed. The memo of appeal was returned to the counsel to file an application under Section 5 of the Limitation Act and to remove the defect. The appeal was again presented before the Stamp Reporter on 28.9.2015. The defect was removed and the certified copy of the impugned order was filed along with an application for condonat .....

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. On this date, the learned counsel sent an illness slip. No supplementary affidavit was filed and, accordingly, the matter was adjourned for 27.10.2015. On this date, another counsel Sri B.K.S. Raghuvanshi appeared contending that he had now received instructions on behalf of the appellant and filed a supplementary affidavit. In this affidavit, allegations against the former Counsel Sri Vinod Kant was levelled contending that the certified copy of the judgment of the Tribunal was provided in th .....

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or did he appear on that date. It was asserted that the delay has been caused on account of slackness on the part of the earlier Counsel. A copy of the supplementary affidavit, that is alleged to have been prepared on 12.10.2015, has also been annexed with the supplementary affidavit, which indicates that the affidavit was to be signed by the Clerk of the Advocate. This supplementary affidavit however, does not explain the delay as to why the appeal could not be filed from 12.6.2015 to 20.9.2015 .....

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A specific assertion has been made that the Department did not send the certified copy of the Tribunal on 07.07.2015 and has only sent an attested copy, which was attested by some officer of the Excise Department. It was also pointed out that on much later stage the certified copy was presented but some how the appeal was not filed because the file of the appeal was misplaced and eventually, the appeal was filed on 28.09.2015. Having heard the the learned counsel for the parties, we are constrai .....

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nner in which it was done in the instant case. We are also constrained to observe that when an official of the Department was present in the office of the counsel for preparation of the affidavit on 12.10.2015, the said official or Officer was required to also sign the affidavit and not to delegate the filing of the affidavit to the Clerk of the learned counsel. It is not the duty of the Clerk to file an affidavit on behalf of the Department. Even if there had been a delay, which could be attrib .....

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