TMI Blog2018 (5) TMI 1836X X X X Extracts X X X X X X X X Extracts X X X X ..... ndency of the appeal before the Supreme Court, the Tribunal vide order dated 8-5-2009 dismissed the appeals of the appellant for failing to comply with its order dated 28-1-2008. After that, the appeal before the Supreme Court was dismissed in default on 13-7-2009, in consequence whereof, the aforesaid orders had somewhat merged into the order of the Supreme Court. The appellant woke up from its slumber after 51/2 years and deposited the amount on 20-3-2015 in both the cases and moved applications in July, 2016 before the Tribunal to recall its dismissal in default’s order dated 8-5-2009 - There is virtually no explanation or sufficient cause for not complying with the orders dated 8-5-2009, 28-1-2008 and during the extended period granted vide order dated 9-9-2008, for almost 6 years. The conduct of the appellant again demonstrates lack of bona fides on their part. Delay in deposit of 5 1/2 years is substantial. Thereafter, they did not move any application for almost 16 months to recall the final order dated 8-5-2009 of Tribunal after the deposit of the part of the amount on 20-3-2015. There has been unexplained delay in depositing the amount and not moving the applications wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hhattisgarh at Bilaspur against the impugned order by way of an appeal filed on 8-8-2017 and the said appeal was dismissed by the said High Court vide order dated 9-1-2018 permitting the appellant for withdrawal of the appeals with liberty to agitate the matter appropriately. It is stated in the applications that the delay is on account of the fact that earlier the appeal was filed bonafidely before another forum, thus, it is requested that the delay in filing the present appeals be condoned, while relying upon the Section 14 of the Limitation Act, 1963. For the reasons as stated above, the delay of 115 days in filing of both the appeals is condoned. Applications are disposed of. SERTA 10/2018 and SERTA 11/2018 :- This judgment shall govern the disposal of the aforestated two appeals i.e. SERTA No. 10/2018 and SERTA No. 11/2018 filed by the same appellant M/s. Pneumatic Power Tools Co., under Section 35G of the Central Excise Act, 1944 wherein the appellant has made the following common prayers : (i) To set side the impugned Misc. Order No. MO/50172-50173/2017-CU(DB), dated 11-4-2017 passed by the Customs, Excise and Service Tax Appellate Tribunal, New Del ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing agency. The Additional Commissioner of Customs Central Excise, Raipur, vide Order-in-Original dated 30-11-2006 in SERTA No. 10/2018 and Order-in-Original dated 21-2-2007 in SERTA No. 11/2018 confirmed the demand proposed in the show cause notices along with interest and penalties. 5. The appeals filed by appellant against the aforestated Orders-In-Original were dismissed by the Commissioner (Appeals), Central Excise, Raipur-II vide Orders-in-Appeal dated 28-6-2007 and 17-7-2007 respectively. The said orders-in-appeal were challenged before the Tribunal, wherein a stay order dated 28-1-2008 was passed directing the appellant to deposit 50% of the tax demand within the period of 8 weeks from that date. Aggrieved by the said stay order, the appellant filed a Writ Petition (C) No. 3673/2008 before this Court. Though this Court vide order dated 10-7-2008 dismissed the said writ petition but it extended the time to deposit the amount as directed by Tribunal by further eight weeks from that date. Further, on an application filed by the appellant, this Court vide order dated 9-9-2008 extended the time to make the pre-deposit by six weeks from that date. On 24-11-2008, this Court o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellant provided the taxable service of cargo handling to Bhilai Steel Plant, Steel Authority of India (SAIL). 30-11-2006 The Ld. Additional Commissioner of Customs Central Excise, Raipur, vide Order-in-Original confirmed the demand proposed in the SCN along with interest and penalties. 28-6-2007 The appeal filed by appellant against the Order-in-Original, dated 30-11-2006, was dismissed by the Ld. Commissioner (Appeals), Central Excise, Raipur-II vide Order-in-Appeal, dated 28-6-2007. 28-1-2008 In the appeal filed by appellant against the OIA dated 28-6-2007 before the Tribunal, a stay order was passed directing the appellant to deposit 50% of the tax demand within the period of 8 weeks. 10-7-2008 Delhi High Court dismisses applicant s writ petition filed against the Stay Order dated 28-1-2008 passed by the Tribunal. 9-9-2008 Delhi High Court grants further extension of 6 weeks to applicant to make the pre-deposit. 24-11-2008 In the modification applicat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 4,66,953/- alleging that appellant provided the taxable service of cargo handling to Bhilai Steel Plant, Steel Authority of India (SAIL). 21-2-2007 The Ld. Additional Commissioner of Customs Central Excise, Raipur, vide Order-in-Original confirmed the demand proposed in the SCN along with interest and penalties. 17-7-2007 The appeal filed by appellant against the Order-in-Original, dated 21-2-2007, was dismissed by the Ld. Commissioner (Appeals), Central Excise, Raipur-II vide Order-in-Appeal, dated 17-7-2007. 28-1-2008 In the appeal filed by appellant against the OIA, dated 17-7-2007 before the Tribunal, a stay order was passed directing the appellant to deposit 50% of the tax demand within the period of 8 weeks. 10-7-2008 Delhi High Court dismisses applicant s writ petition filed against the Stay Order dated 28-1-2008 passed by the Tribunal. 9-9-2008 Delhi High Court grants further extension of 6 weeks to applicant to make the pre-deposit. 24-11-2008 I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amounting to ₹ 8,62,924/- in SERTA No. 10/2018 and ₹ 4,66,953/- in SERTA No. 11/2018. Thereafter, the Additional Commissioner of Central Excise, Raipur vide Order-in-Original confirmed the demand proposed in the show cause notices on 30-11-2006 and 21-2-2007 respectively. The aforesaid two orders were challenged by the appellant in appeals which were also dismissed by the Commissioner (Appeals), Central Excise, Raipur-II vide orders dated 28-6-2007 and 17-7-2007. Thereafter, the appellant filed the appeals against the Orders-in-Appeal before the Tribunal and a stay order dated 28-1-2008 was passed directing the appellant to deposit 50% of the tax demand within a period of eight weeks. Thereafter, the appellant against the aforesaid order dated 28-1-2008 filed a writ petition before this Court which was dismissed as withdrawn vide order dated 10-7-2008, granting 8 weeks time from that date to make the pre-deposit. This Court vide order dated 9-9-2008 further granted an extension of 6 weeks for making the payment in compliance of the order dated 28-1-2008 of the Tribunal. On 24-11-2008, in view of the modification application filed by the appellant, this Court orally ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The order of dismissal and non-compliance was made nearly three and a half years after the Order-in-Original, dated 10th July, 1992 and the order of the Tribunal directing pre-deposit dated 19th January, 1993. Thus, sufficient time and opportunity was granted. 13. The order of dismissal of the appeal dated 7th February, 1996 was not challenged for 22 years. In 2017, the appellant woke from slumber and moved a miscellaneous application for restoration of the appeal primarily on the pretext that disputed tax had been paid. This delay of 22 years cannot be condoned on vague assertions and general statements that law of condonation of delay is liberal and justice would prevail if the appeals are heard on merits for payments have been made. Such pleas are specious and deserve rejection. 14. As noticed above, show cause notice for clandestine manufacture/sale etc., was issued on 25th March, 1988. The Order-in-Original was passed on 10th July, 1992. Recoveries obviously had to be made, especially once the Order-in-Original had become final. Mere recoveries or even payment after years cannot result in restoration of the appeals or justify condonation of delay in moving the restorat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... od cause and justification. On the other hand, their conduct lacks bona fide and manifests recklessness. This careless attitude and indifference is unacceptable. 18. There is no doubt that liberal construction of the words sufficient cause can be put when there is neither negligence or inaction nor want of bona fides imputable to the applicant. However, in this case, there is not only negligence, but also inaction as well as the petition lacks bona fides. There is virtually no explanation for a substantial portion of period spanning over 22 years. The list of dates and events itself demonstrate that for years, the appellant was inactive and in a state of acceptance and a vague description of events is submitted, which only demonstrates their lack of bona fide and gross negligence. Hence, we do not find any flaw or infirmity in the order of the Tribunal, rejecting the application for condonation of delay in filing the restoration application and accordingly dismissing the application for restoration. Judgments relied by the appellant are based on facts, hence, are not of any help, in view of the facts of the present appeal, which are glaring and deserve no indulgence and lenien ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... osit of the part of the amount on 20-3-2015. There has been unexplained delay in depositing the amount and not moving the applications within the stipulated time. The delay of almost 6 years in depositing the amount and thereafter, delay of 16 months of moving an application before the Tribunal cannot be condoned on vague assertions. In case we accept the plea and condone protracted and unexplained delays, the appellate proceedings would become seemingly endless, that could be revived on payment at the option of the appellant-assessee. 19. Learned Counsel for the appellant has as discussed hereinabove, vehemently submitted that the appellant has a very good case on merits. However, in view of the facts, whether the appellant has a very good case or not, mere recoveries/deposit of amount after years cannot allow a party to move an application for the restoration of the appeal. Such a conduct cannot be permitted for maintaining the judicial discipline. The delay is condonable when sufficient cause is shown. Explanation should be from the last day of limitation. Appellant must show diligence and bona fides and not inaction or negligence. Condoning such delays would make the proceed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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