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M/s. Sivalogam Steels Pvt. Ltd. Versus The Customs Excise and Service Tax Appellate Tribunal, The Commissioner of Central Excise (Appeals)

2016 (6) TMI 408 - MADRAS HIGH COURT

Condonation of delay - 405 days - Imposition of duty and personal penalty - Held that:- the said order certainly is prejudicial to the interest of the appellant. Though, while dismissing the condonation petition, CESTAT, Chennai Bench, has observed that there is no justifiable cause, going through the reasons assigned, it could be seen that the appellant has not offered a detailed explanation. Also the Tribunal has observed that dislocation of residence is not a justifiable cause. But the fact r .....

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d following the principles of law enunciated in the decision of the Hon'ble Supreme Court, we are inclined to condone the delay of 405 days in filing the appeal before CESTAT on condition that the appellant pays costs of a sum of ₹ 2,500/- in each of the appeals to My Lord the Hon'ble Chief Justice's Relief Fund, within a period of three weeks. - Decided in favour of appellant - CMA Nos. 754 and 755 of 2016, CMP Nos. 6182 to 6184 of 2016 - Dated:- 3-6-2016 - S. Manikumar And D. Krishnakuma .....

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nt Civil Miscellaneous Appeals viz., CMA Nos.754 and 755 of 2016, are filed. 2. Assailing the correctness of the impugned orders, Mr.L.J.Vengatesh, learned counsel for the appellant submitted that before CESTAT, Chennai Bench, imposition of duty and personal penalty of ₹ 10,37,673/-, were challenged. 3. According to the learned counsel for the appellant, though the order dated 10.09.2013 passed in Appeal Nos.121 and 122 of 2013 dated 10.09.2013, was received by the appellant's tenant o .....

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etween 27.09.2013 and 10.02.2014. Again, he had to leave the country and he came back only on 26.07.2014. Citing the abovesaid reasons, Mr.L.J.Vengatesh, learned counsel for the appellant submitted that though sufficient cause for not making the application within the period of limitation, was shown and when the Courts have consistently held that while testing the correctness of the reasons, on the sufficient cause shown, Courts have to be reasonable, pragmatic, practical and liberal in condonin .....

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n of the Hon'ble Apex Court in Esha Battacharjee Vs. Managing Committee of Raghunathpur Nafar Academy and Others, reported in (2013) 12 SCC 649 and other decisions referred to in the memorandum of grounds. During the course of argument, learned counsel for the appellant also submitted that the department's appeal was condoned, with a delay of more than 1000 days. 6. Per contra, inviting the attention of this Court to the reasons assigned in Ground Nos.4 and 5 of the supporting affidavit .....

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al penalty of ₹ 10,37,673/- have been imposed. Certainly that said order prejudices the interest of the appellant. Though, the copy of the order is stated to have been received by the tenant of the appellant on 05.11.2013, contentions have been raised that it has been misplaced by them. The appellant has also stated that there was some dislocation of residence and his mother had passed away on 10.02.2014. Before CESTAT, the appellant has sought for condonation, citing the above as unexpect .....

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, justice-oriented, non-pedantic approach while dealing with an application for condonation of delay, for the courts are not supposed to legalise injustice but are obliged to remove injustice. 21.2. (ii) The terms sufficient cause should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact-situation. 21.3. (iii) Substantial justice being paramount and pivo .....

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ourts are required to be vigilant so that in the ultimate eventuate there is no real failure of justice. 21.7. (vii) The concept of liberal approach has to encapsulate the conception of reasonableness and it cannot be allowed a totally unfettered free play. 21.8. (viii) There is a distinction between inordinate delay and a delay of short duration or few days, for to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the first one warrants str .....

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unds urged in the application are fanciful, the courts should be vigilant not to expose the other side unnecessarily to face such a litigation. 21.11. (xi) It is to be borne in mind that no one gets away with fraud, misrepresentation or interpolation by taking recourse to the technicalities of law of limitation. 21.12. (xii) The entire gamut of facts are to be carefully scrutinised and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and .....

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here is no justifiable cause, going through the reasons assigned, it could be seen that the appellant has not offered a detailed explanation. For brevity, paragraph Nos. 4 and 5 of the reasons assigned in the supporting affidavit to Appeal Nos.E40662 & E40663 of 2015, are extracted hereunder. 4. All the Appellant Directors of the company searching for their survival which dislocated their residence from the normal address, where the commissionerate orders being delivered to us by our tenant .....

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