TMI Blog2016 (1) TMI 960X X X X Extracts X X X X X X X X Extracts X X X X ..... have taken his personal liberty so lightly in not appearing on summons, when he was functioning in a responsible position, as a Branch Manager. Therefore, the contention that he was not aware of the adjudication proceedings and that is why, there is a delay in filing the application for condonation of delay must be true. In any event, the delay is only 217 days, and the reasons for the delay have been convincingly explained before this Court. Therefore, the CESTAT should have condoned the delay and should have given an opportunity to the appellant, to contest the case, on merits - Matter remanded back to tribunal. - Civil Miscellaneous Appeal No. 2735 of 2015 - - - Dated:- 7-1-2016 - M. Jaichandren And S. Vimala, JJ. For the Appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bited items and therefore, he was not liable for penalty under Section 114 of the Act. However, the second respondent passed an Order-in-Original, dated 31.03.2012, by which, he imposed a penalty of ₹ 5,00,000/- under Section 114 of the Act, upon the appellant. 2.4. The appellant filed an appeal before the CESTAT / the first respondent herein with an application to condone the delay of 217 days. The Tribunal dismissed the same, by the order, dated 26.06.2015 and aggrieved over the same, the appellant is before this Court, raising the following subtantial questions of law:- 1. Whether it is legal and proper for the first respondent Tribunal to dismiss the application for condonation of delay without any appreciation of the sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as it appears that because prosecution has been launched by the Department, appellant tries to keep the matter alive before Tribunal for no good reason. .... 5. Whether the reasons stated by the CESTAT is sufficient in the eye of law to dismiss the application for condonation of delay is the issue canvassed before this Court. 6. The learned counsel for the appellant submitted that, despite the submissions made on facts and law by the appellant, they were not at all considered and discussed by the CESTAT and that the decisions relied upon by the appellant were also not taken into account while deciding the matter. It is further submitted that the reason is the soul of the judgment and when the judgment is lacking in reasons, it is no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and should have given an opportunity to the appellant, to contest the case, on merits, especially considering the dictum laid down in the following cases, relied upon by the learned counsel for the appellant:- (i) United Telecom v. Commissioner reported in 2011-TIOL-678-HC-Kar-Cus. ... The words sufficient cause' in section 5 of Limitation Act, 1963 should receive a liberal construction so as to advance substantial justice as held by Apex Court.... (ii) Bhag Singh v. Major Daljit Singh, reported in 1987 (32) ELT 258 (SC):- ...the Court while considering an application under Section 5 of the Limitation Act will consider the facts and circumstances not for taking too strict and pedantic stand which will cause injus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9. From the decisions, cited supra, it is evident that the CESTAT, instead of choosing to throw out the proceedings at the threshold, should have adopted a pragmatic approach in affording an opportunity to the appellant enabling him to fight for substantial justice. These decisions persuade us to set-aside the order of the CESTAT and to condone the delay, in preferring the Appeal. 10. In the result, this Civil Miscellaneous Appeal is allowed and the order passed by the CESTAT / first respondent herein is set-aside. The delay of 217 days in preferring the appeal is condoned and the matter is remitted back to the CESTAT, with a direction to hear the parties on merits of the case and to pass appropriate orders, in accordance with law. ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
