9911796707
TMI Blog2022 (12) TMI 828X X X X Extracts X X X X X X X X Extracts X X X X ..... was not filed within 60 days of the date of receiving the Order-in-Original rather it was filed after a delay of two years. 2. I have heard Ms. Priyanka Goel and Mr. K.G. Singh, learned Advocates for the appellant and Ms. Tamanna Alam, learned Authorized Representative for the respondent. 3. Learned Counsel for the appellant has submitted that undisputedly the Order-in-Original dated 13.02.2017 was received by the appellant on 20.02.2017, still the appeal was filed on 24.10.2019. Thus, the delay of more than two years in filing the impugned appeal has been acknowledged but with the mention that the delay has occurred solely because of the negligence of the counsel for the appellant who was engaged to prefer an appeal on behalf of the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re, the defense of the appellant could not have come on record. The appellant otherwise has good merits in the appeal as all the conditions about the export obligation license were duly been fulfilled by the appellant. It is requested that the case of appellant may not be thrown to threshold for none of its fault but on account of the fault of the previous counsel of the appellant. 3.2 Regarding the deposit of the amount of 7.5% of the demand confirmed, learned Counsel has mentioned that entire 10% of the amount of duty confirmed against the appellant has already been deposited while filing the appeal before this Tribunal. The said deposit includes the aforesaid 7.5% of the amount as was required to be deposited prior filing appeal before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peal is perused. It is apparent that no reply to the show cause notice was filed by the appellant. There is nothing on record to show that any counsel was engaged who failed 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 de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the given set of circumstances. In the case of Central Industrial Security Force (supra) as relied upon, the appellant therein was the PSU and the delay was explained as time taken in obtaining sanction for filing of the appeal. In Yapp India Automotive Systems Pvt. Ltd. (supra), no doubt Section 5 and 29 of Limitation Act were allowed to be invoked but for the reason that the delay in that appeal was just of 79 days much lesser than the delay in the impugned matter and otherwise it was sufficiently explained. In M/s. Jagdish Ispat Pvt Ltd. (supra), the decision of this Bench itself, no doubt the decision of Bansidhar and Company Vs. Collector of Central excise, 1990 (50) ELT 192 (SC), was relied upon wherein it was held that the litiga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 because it is capable of removing injustice and is expected to do so. Making a justice oriented approach from this perspective, delay in the institution of appeals must be condoned. However, in the said decision itself, the Hon'ble Apex Court has warned that there should be a justice oriented approach to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red within three months from the date of communication to him of the decision or order. However, if the Commissioner is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of 60 days, he can allow it to be presented within a further period of 30 days. In other words, this clearly shows that the appeal has to be filed within 60 days but in terms of the proviso further 30 days time can be granted by the appellate authority to entertain the appeal. The proviso to sub-section (1) of Section 35 makes the position crystal clear that the appellate authority has no power to allow the appeal to be presented beyond the period of 30 days. The language used makes the position clear that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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