TMI Blog2022 (12) TMI 828X X X X Extracts X X X X X X X X Extracts X X X X ..... 016 and 13.01.2017 but it is simultaneously apparent on record that the time requested by the counsel to submit his defense was duly afforded by the original adjudicating authority. Before Commissioner (Appeals) also the notice of personal hearing was granted to the appellant on 23.06.2021. The previous counsel for the appellant instantly vide e-mail dated 25.06.2021 requested for another date. His request was accepted, however, on the next date of hearing, the counsel failed to appear. There is nothing on record to show any step ever taken by the appellant to enquire the absence of the appellant s counsel or to enquire about the time taken by him for filing his defense before the adjudicating authority. These observations are opined sufficient to falsify the allegations against the previous counsel that he was negligent and that he was responsible for these delay, as substantial as that of more than two and a half years, for filing the appeal before Commissioner (Appeals). There is not even any affidavit of the said previous counsel on record, acknowledging the alleged negligence on his part. It is apparent that the appellant had even failed to observe the timeline of the EP ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... counsel for the appellant. The following decisions have been relied upon by the learned counsel to impress upon that the appellant cannot be burdened due to the false of his counsel: (i) Central Industrial Security Force Vs. Commr. Of CGST C.Ex. reported as 2018 (14) G.S.T.L. 198 (All.) (ii) Collector, Land Acquisition Anantnag and another Vs. MST. Katiji and Others reported as 1987 (28) E.L.T. 185 (S.C.) (iii) Yapp India Automotive Systems Pvt. Ltd. Vs. C.C.E. S.T., Pune-I (iv) Kothari Sugars and Chemicals Ltd. Vs. Asstt. Commr. Of C.Ex.-I, Trichy reported as 2018 (361) E.L.T. 643 (Mad.) (v) M/s. Jagdish Ispat Pvt. Ltd. Vs. The Commissioner of CGST, Central Excise and Customs, Raipur vide Final Order No. 51670/2019 dated 28.11.2019. 3.1 It is also submitted by the learned Counsel that otherwise also the department had been unfair while dealing with the impugned matter. The original adjudicating authority has not given sufficient time to the appellant to plead its case despite that on both the dates adjourned by the original adjudicating authority there was the request seeking time by the counsel for the appellant. Therefore, the defense of the appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led to filed the said reply. From the Order-in-Original, It is observed that three notices of personal appearance were served upon the appellant i.e. for 20.12.2016, 13.01.2017 and 02.02.2017. No doubt the appellant through their previous counsel had responded to the notice dated 20.12.2016 and 13.01.2017 but it is simultaneously apparent on record that the time requested by the counsel to submit his defense was duly afforded by the original adjudicating authority. Both the letters of the appellant s counsel are sufficient to hold that there was no apparent negligence or delay on part of the previous counsel for the appellant as is alleged in the present appeal. Since the same counsel who was appearing before the original adjudicating authority below has preferred appeal before Commissioner (Appeals), it is difficult to accept that the counsel was not aware of applicable laws and that he has failed to advice the appellant in terms thereof properly. Ignorance of law is not a defense available even to the appellant. 6. Before Commissioner (Appeals) also the notice of personal hearing was granted to the appellant on 23.06.2021. The previous counsel for the appellant instantly vide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not stand to benefit by lodging an appeal late. (ii) Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties. (iii) Every day's delay must be explained does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational common sense pragmatic manner. (iv) When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay. (v) There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk (vi) it must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but bec ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
