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TMI Blog2019 (7) TMI 1538X X X X Extracts X X X X X X X X Extracts X X X X ..... that had been filed by the Department. 3. Subsequently, a communication dated 08 February, 2017 was also sent to the Applicant by the Registry of the Tribunal by speed post mentioning therein that the appeal would be listed for final hearing before the Tribunal on 27 February, 2017. This letter dated 8 February, 2017 was admittedly received by the Applicant on 14 February, 2017. 4. When the matter was taken up by the Tribunal on 27 February, 2017, Shri Prakash Sinha, a learned Counsel appeared for the Applicant and the Bench directed the Registry to provide a copy of appeal to the counsel while adjourning the matter on 5 April 2017. The order sheet indicates that when the matter was taken up on 5 April, 2017, one Shri Ramanand appeared for the Applicant and sought adjournment. Thereafter, on 12 May, 2017 Shri A. S. Hasija, learned Counsel appeared for the Applicant and sought adjournment. The order sheet further indicates that on various dates different Counsel appeared for the Applicant. On 22 August, 2017 Ms. Shreya Ganju, learned Counsel appeared and on 27 September, 2017 Shri Nilotpal Shyam, learned Counsel had appeared on behalf of the Applicant. The order sheet pertaining t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adjusted illegally the excess tax paid of Rs. About 3 Crore, thus causing extreme financial hardship to the Company. 4. That Appellant company received notice of this Hon'ble Court issued in ST Appeal No. 50787 of 2014 on 14.02.2017, and approached his counsel for filing of response thereof. However, due to financial crunch, the Applicant was not able to pursue the matter effectively. 5. During March 2017, since the matter could not be pursued effectively, the Applicant Company engaged another Lawyer for contesting the case. 6. That owning to financial crunch resulting mainly from the fund illegally stuck by virtue of the impugned order, Applicant Company could not service its credit facility btained from the HDFC and as a consequence, its account was declared NPA on 01.05.2017. On 22.02.2018, the credit facility stood withdrawn by the Bank. Presently, the Applicant Company is negotiating a One Time Settlement (OTS) with the Bank and the matter stand so awaiting liquidity inflow. 7. In the meanwhile, since the Lawyers engaged during March 2017 did not pursue the matter effectively, the brief was transferred to the present counsel during the month of February, 2018. 8. Tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r (2008) 17 SCC 321. 10. Shri R. K. Manjhi, learned Authorised Representative of the Department, however, strongly refuted the contentions advanced by the learned Counsel for the Applicant. Learned Representative submitted that the period of limitation in filing the Cross objection should be calculated from the date of receipt of the speed post sent by the Registry of the Tribunal on 19 March, 2014, which delay has not been explained at all and in any case the delay from the receipt of the subsequent communication of the Tribunal on 27 February, 2017 has not been explained sufficiently. Learned Representative, therefore, submitted that the Application should be rejected. 11. The submission advanced by the learned Counsel for the Applicant and the learned representative of the Department have been considered. 12. The facts stated in the Application clearly indicate that notice of the appeal with a copy of the appeal that was filed by the Department on 31 January, 2014 was sent to the Applicant by the Registry of the Tribunal by speed post on 19 March, 2014. There is no specific denial regarding receipt of this notice in any of the paragraphs of the application. All that has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 017, the matter could not be pursued effectively so the Applicant engaged another lawyer for contesting the case. Paragraph 6 states that owing to financial crunch, the Applicant company was declared a Non Performing Asset on 1 May, 2017 and thereafter, the Applicant negotiated with a Bank for a one-time settlement. Paragraph 7 mentions that since the lawyers engaged by the Applicant during March, 2017 did not pursue the matter effectively, the brief was transferred to a new Counsel in February, 2018. Paragraph 8 states that office of the present counsel informed the Applicant that apart from filing a reply, it was advisable to file cross-objection and so all the records were requisitioned from the Applicant. Paragraph 9 states that since the records of the company were disorganised due to bad financial crunch and lack of adequate staff, it took time to trace them out and after they were traced out, the cross-objection was drafted for being filing. Paragraph 10 of the Application states the delay was neither intentional nor deliberate. Paragraph 11 mentions that the Appeal filed by the Department was pending and so it would be in the interest of justice that the delay is condoned a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Court in V. N. Bharat that has been relied upon by the learned Counsel for the Applicant to submit that it was for the Department, when there was a denial about the receipt of the letter, to substantiate by documentary evidence that the speed post sent had actually been served. This decision will not come to the aid of the Applicant, as in the present case, there is no averment in the delay condonation application that the notice dated 19 March, 2014 that was sent by speed post was not served on the Applicant. In any view of the matter even the delay from the receipt of the second notice on 27 February, 2017 has not been sufficiently explained. 17. Voltas, on which reliance has also been placed by learned Counsel for the Applicant, was a case where the party had filed two appeals with delay condonation application. The Department had also filed an appeal in which cross-objection was filed by the party. It is for this reason that the High Court observed that since the matter was engaging the attention of the Tribunal in the cross-objection filed by the party, it would be appropriate to condone the delay in filing the appeal. This decision, therefore, does not support the Applican ..... X X X X Extracts X X X X X X X X Extracts X X X X
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