9911796707
TMI Blog2008 (3) TMI 228X X X X Extracts X X X X X X X X Extracts X X X X ..... bmitted that only in March, 2004 the appellant for the first time came to know about the impugned order dated 21-8-2002 passed against it by the ld. Commissioner of Central Excise. Appeal against that order was filed on 22-3-2005 and there was delay of 841 days for reasons beyond control of the appellants. It's unit became sick for closure of factory due to serious labour strike, electricity disconnection and compulsory lay off and/or temporary suspension of work. All these incidents made it financially unviable. After the Apex Court's order dated 12-12-1996, its three factories in Assam were to be shut down for a period of Eight years. Against the SCN issued by authorities below, the appellant filed its reply on 13th and 14-5-2002 with a p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is Tribunal had dismissed application for a condonation of delay in MA (COD) No. 203/05 by Order No. M-124 /S/225/A-129/KOL/06, dated 13-3- 2006. Being aggrieved, the appellant had approached the Hon'ble High Court of Calcutta in Writ Petition No. 1268 of 2006 which was disposed by an order dated 15-9-2006 setting aside and quashing the order. By that order, Tribunal was directed to consider application for condonation of delay afresh, granting opportunity of hearing. 1.4 Dr. Chakraborty further submitted that on the aforesaid backdrop when the appellant was deprived of personal hearing by the ld. Adjudicating Authority, it shall be grave injustice if the appellant is thrown at the threshold without condonation of delay when the Hon'ble Hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roceedings would have been taken by the decree-holder since there was no stay against such execution proceedings. On the advice of the same advocate, he signed some papers including a vakalatnama for resisting the execution proceedings, besides making a payment of rupees two thousand towards advocate's fees and other incidental expenses. But the fact is that the said advocate did not do anything in the Court even thereafter. On 4-8-1995 the execution warrant was issued by the Court and he became suspicious of the conduct of his advocate and hence rushed to the Court from where he got the disquieting in formation that his application to set aside the ex parte decree stood dismissed for default as early as 17-2-1993 and that nothing was done ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on and normally the superior court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds of arbitrary or perverse. But it is a different matter when the first court refuses to condone the delay. In such cases, the superior court would be free to consider the cause shown for the delay afresh and it is open to such superior court to come to its own finding even untrammeled by the conclusion of the lower court. 10. The reasons for such a different stance is thus : The primary function of a court is to adjudicate the dispute between the parties and to advance substantial justice. The time-limit fixed for approaching the court in different situations is not beca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t cause" under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice vide Shakuntala Devi jain v. Kuntal Kumaril and State of W.B. v. Administrator, Howrah Municipality. 13. It must be remembered that in every case of delay, there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put forth as part of a dilatory strategy, the court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time, then the court should lean against acceptance of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Apex Court decision as well as the decision of the Hon'ble High Court of Calcutta, we appreciate that the appellant should be granted an opportunity of hearing which it could not avail for reasons beyond its control. Therefore, we condone the delay in filing the appeal and appeal is admitted for disposal. 3.3 Having carefully looked into the matter for .grant of natural justice, being a crucial issue, the appellant may not be deprived of right to be heard. Having drawn such conclusion, we allow the stay application and dispense the pre-deposit as well as remand the matter to the ld. Adjudicating Authority who shall hear the matter and pass appropriate order in accordance with law with due regard to the principles of natural justice. For s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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