2010 (2) TMI 70 - HC - Central Excise

High Court grants interim injunction, orders fresh appeal hearing before Tribunal, emphasizes cooperation, sets aside previous order.

1. M/s. LEO OILS AND LUBRICANTS Versus 1. CUSTOMS EXCISE AND SERVICE, TAX APPELLATE TRIBUNAL 2. THE COMMISSIONER OF CENTRAL EXCISE

The High Court admitted the writ petition filed under Article 226 of the Constitution of India, granting an interim injunction and directing a fresh ... Appeal before CESTAT – condonation of delay – delay of 40 days – CESTAT , had dismissed the applications filed by the petitioner for condonation of delay of 40 days in filing the appeal and for waiver of the pre-deposit amount, by the impugned order, dated 21.2.2006 – held that - In view of the averments made on behalf of the parties concerned, and in view of the submissions made by the learned counsels appearing on their behalf, the impugned order of the first respondent Tribunal, dated 21.2.2006, is set aside and the first respondent Tribunal is directed to hear the appeal filed by the petitioner firm, in appeal No.E/873/04-E/PD/457/04-E/COD/352/04 and pass appropriate orders thereon, on merits and in accordance with law, after giving an opportunity of hearing to the petitioner and the second respondent herein, within a period of twelve weeks from the date of receipt of a copy of this order. It is made clear that the petitioner shall fully cooperate in the proceedings before the first respondent appellate tribunal. Issues:1. Condonation of delay in filing appeal before Customs, Excise and Service Tax Appellate Tribunal.2. Quashing of impugned final order and directing a fresh hearing on merits.3. Dismissal of appeal without considering reasons for delay.4. Admissibility of writ petition under Article 226 of the Constitution of India.5. Granting of interim injunction.6. Cooperation of petitioner firm in the appeal process.Analysis:1. The petitioner filed a writ petition under Article 226 of the Constitution of India seeking a Writ of Certiorarified Mandamus to challenge the dismissal of their appeal by the Customs, Excise and Service Tax Appellate Tribunal due to a delay of 40 days in filing the appeal. The delay was not condoned, leading to the dismissal of the appeal without considering the merits of the case. The petitioner argued that the reasons for the delay were not taken into account by the Tribunal.2. The High Court admitted the writ petition and granted an interim injunction restraining the respondents from implementing the final order passed by the Tribunal. The petitioner complied with the court's directive to pay a specified amount, and the court directed the Tribunal to hear the appeal on merits within twelve weeks, emphasizing the petitioner's cooperation in the proceedings.3. The second respondent filed a counter affidavit denying the allegations made by the petitioner and contending that there was no justification for the delay in filing the appeal. The court set aside the Tribunal's order and directed a fresh hearing of the appeal, instructing the Tribunal to pass appropriate orders after giving both parties an opportunity to present their case.4. The petitioner's counsel informed the court that the petitioner firm was defunct and unable to pay any further amounts claimed. The court directed the petitioner to cooperate fully in the appeal process before the Tribunal. The judgment concluded by disposing of the writ petition with the specified directions for the Tribunal to hear the appeal and make a decision based on the merits of the case.5. The judgment was delivered by Justice M. Jaichandren, who set aside the Tribunal's order and provided detailed instructions for the further proceedings, emphasizing the importance of a fair hearing and cooperation from the petitioner in the appeal process. The court did not award any costs in this matter.