TMI Blog2022 (6) TMI 163X X X X Extracts X X X X X X X X Extracts X X X X ..... ant is an outcome of absolute negligence and omission of the act what appellant was supposed to perform after filing of his appeal during said period of five years. It stands clear that lack of bonafides and the apparent negligence on part of the party seeking relief is a significant and relevant fact to be considered while dealing with the situation as one in hand. Hon ble Apex Court in ESHA BHATTACHARJEE VERSUS MANAGING COMMITTEE OF RAGHUNATHPUR NAFAR ACADEMY AND OTHERS [ 2015 (1) TMI 1053 - SUPREME COURT] has held that even the affidavit and supporting certificate may not merit consideration - the application in hand itself has been filed after substantial delay. The appellant is already been observed to be negligent and thus he is held to not to be entitled for the discretionary relief. In the given circumstances, under no stretch of imagination there could be a justification to file an application at the sweet will of the applicant. Further, as per applicant himself, the Department has already acted upon the final order and has issued a recovery notice to the appellant which is mentioned as the date of knowledge of appellant about the impugned final order. But it is opi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ex-parte. Though it came up for hearing on four occasions without rendering any findings on submission of the applicant. Hearing notices were never received by the appellant which was the main reason for appellant to not to appear before the authority below. It is impressed upon that there was no sufficient compliance of the provisions of Section 37C(1)(a) of Central Excise Act 1944. Following decisions have been relied upon: i. Amidev Agro Care Pvt. Ltd. vs. UOI reported as 2012 (26) STR 299 (BOM.) ii. New Drug Chemical Co. vs. UOI reported as 2015 (325) ELT 313 (Bom.) iii. Dipika Coal Carriers Pvt. Ltd. vs. Commissioner of C.Ex ST Raipur reported as 2017 (47) STR 21 (Tri-Del.) 5. To rebut these submissions, learned DR has mentioned that the application itself has been filed after a long period. The appeal was decided vide final order dated 09.05.2017. However, the impugned application has been filed on 27.8.2021, irrespective there is no time period given under the applicable statute for filing application praying for restoration of appeal but since the appeal itself has to be filed within a period of not later than three months in terms of section 35C of C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on is miserably silent about any effort of the appellant to enquire about the status of his appeal. The said conduct of the appellant is an outcome of absolute negligence and omission of the act what appellant was supposed to perform after filing of his appeal during said period of five years. Hon ble Apex Court in the case of Esha Bhattacharjee vs. Management Committee of Raghunathpur, Nafar Academy reported as 2013 (5) CTC 547 while adjudicating the civil Miscellaneous Appeal has held as follows: We find no reason as to why the appellant or the advocate or the tax consultant did not appear on two occasions when the matter was listed before the Tribunal. The Tribunal had no other option except to dismiss the case for non-prosecution, as no one turned up despite being given two adjournments. The Tribunal is already loaded with large number of cases and if such conduct is encouraged, it only leads to clogging the wheels of justice. There are so many other litigants who are waiting for hearing of their cases with diligence. In the present case, the appellant is not serious in pursuing the matter either by himself or through the consultant or through advocate. The Appellate Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of liberal approach. x. If the explanation offered is concocted or the grounds urged in the Application are fanciful, the Courts should be vigilant not to expose the other side unnecessarily to face such a litigation. 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. xii. The entire gamut of facts are to be carefully scrutinized and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception. xiii. The State or a public body or an entity representing a collective cause should be given some acceptable latitude. 9. Hon ble High Court of Madras in the case of S. Xavier (Supra) while relying upon the aforesaid decision, in addition, has added following more guidelines: Though no precise formula can be laid down regard being had to the concept of judicial discretion, yet a conscious effort for achieving consistency and collegiality of the adjudicatory system should be made as that is the ultimate institutional motto. The increasing tendency to perceive delay as a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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