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2018 DIGILAW 426 (BOM)

Techno Forge Ltd. v. Union Of India

2018-02-12

BHARATI H.DANGRE, S.C.DHARMADHIKARI

body2018
ORDER S.C. Dharmadhikari, J. - By this appeal, the appellant challenges the order dated 7th April, 2014 dismissing its application for restoration of their appeal before the Tribunal. 2. After perusing the order under appeal, we find that there is a substantial question of law which is involved. Hence, we admit this appeal on the following three substantial questions of law. (a) Whether Hon''ble Tribunal i.e. respondent No. 2 has erred by not appreciating legal position that in case of unreported compliance of stay order before Hon''ble Tribunal appeal merits restoration of appeal? (c) Whether the Hon''ble Tribunal respondent No. 2 erred in no appreciating the submissions of the appellant in its application for restoration of appeal that the dismissal of appeal by the Hon''ble Tribunal for want of report of compliance was without giving another opportunity to the appellant or directing the departmental representative to call for the report of compliance from the jurisdictional Range office and Divisional office and consequently merits the consideration in the interest of justice as per the proviso to Rule 20 of the CESTAT (Procedure) Rules, 1982? (d) Whether the Hon''ble Tribunal respondent No. 2 has erred in not appreciating the fact the appeal to be restored as per the provisions of Rule 20 of CESTAT (Procedure) Rules, 1982 when the stay order has been complied by the appellant in time but remained unreported to the Hon''ble Tribunal for no fault of the appellant? 3. With the consent of both sides, we dispose of this appeal by the following order. 4. The appellant says that it was aggrieved and dissatisfied with the order passed against it confirming the demand raised in the show cause notice, which show cause notice was adjudicated as far back as on 5th December, 1995. On the appeal against such an order, the Tribunal entertained it and granted interim relief. That interim stay order was conditional. That order was passed on 25th March, 1996. Since there was an error in that order, it was corrected on 23rd September, 1996. Thereafter, the appellant reported compliance by executing the personal bond. However, the Tribunal dismissed this appeal on 2nd April, 1997. 5. It is only when the Range office initiated recovery proceedings and directed the appellant to pay the tax/dues that the appellant approached its consultant. The consultant applied for a copy of the order of the Tribunal dated 2nd April, 1997. However, the Tribunal dismissed this appeal on 2nd April, 1997. 5. It is only when the Range office initiated recovery proceedings and directed the appellant to pay the tax/dues that the appellant approached its consultant. The consultant applied for a copy of the order of the Tribunal dated 2nd April, 1997. The application by the consultant is dated 26th February, 2013, and on 19th March, 2013, the certified true copy of the Tribunal''s order of 2nd April, 1997 was provided. Thereafter, the appellant moved the authority i.e. Recovery Officer to find out whether there is compliance with the direction issued by the Tribunal of furnishing the personal bond. After that, compliance was reported. The appellant approached erroneously the Ahmedabad Bench of the CESTAT rather than the Mumbai Bench. 6. The appellant also paid the excise duty of Rs. 4,70,037/- plus penalty of Rs. 25,000/-and redemption fine of Rs. 5,000/- and then intimated compliance based on which the attachment which was levied on the petitioner''s bank account, came to be raised. 7. After all this, the petitioner preferred a restoration application before the Tribunal, but it came to be dismissed by the impugned order. Hence, this appeal. 8. In the order under appeal, the Tribunal observed that the restoration cannot be granted. That is because the restoration application is not only belated, but the appellant could not have delayed the matter any further, particularly after it received a certified copy of the Tribunal''s order passed in April, 1997 on 19th March, 2013. It is only on the ground that the application for restoration is filed belatedly that it came to be dismissed. 9. Upon perusal of the entire paper book, and particularly the admitted factual position, we are unable to understand the approach of the Tribunal. Eventually, Tribunals are set up to render substantial justice and not to defeat just and bona fide claims by hyper technical approach. Somehow or the other, we find that a file clearance drive which the Revenue adopts on its administrative side has taken over the Tribunal members. The Tribunals are discharging quasi judicial functions. Eventually, Tribunals are set up to render substantial justice and not to defeat just and bona fide claims by hyper technical approach. Somehow or the other, we find that a file clearance drive which the Revenue adopts on its administrative side has taken over the Tribunal members. The Tribunals are discharging quasi judicial functions. In fact, it is more a judicial power and when it has to adjudicate the appeals on merits and in accordance with law, it is suppose to give parties an opportunity to argue their cases on merits particularly once the Tribunal is satisfied that the parties i.e. the assessee has acted bona fidely. There is no gross negligence and utter callousness in this case. True, it is that there was a lapse and which was of reporting compliance to the Tribunal. 10. The Tribunal should have noted that not only the lapse is cured, but the amounts are deposited after the warrant of attachment was levied. Thus, even recovery by coercive means once resorted, resulted in substantial part of the revenue being secured. After this, there was no occasion for the Tribunal to adopt an approach which defeats justice. It is thus not an approach which a last finding authority i.e. the CESTAT should adopt and in every case. Once such an order is passed and parties approach this Court in further appeal, this Court is left with no alternative but to pass an order allowing the appeals. Our judicial time is equally precious. There is a difference between a Secretariat and Administrator clearing old files and a Court of law deciding old cases. True that, old cases have to be given priority, but this is not a manner of disposal which we can uphold. 11. As a result of the above discussion, the impugned order stands quashed and stands set aside. 12. The appeal is allowed. 13. The Tribunal shall restore the appellant''s appeal for adjudication on merits and in accordance with law. 14. There will be no order as to costs.