AI Drafter 
TaxTMI 
TaxTMI 
TaxTMI 
2018 (5) TMI 1836
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...., expired on 18-11-2017. It is further submitted by the appellant that the appellant had earlier approached the High Court of Chhattisgarh at Bilaspur against the impugned order by way of an appeal filed on 8-8-2017 and the said appeal was dismissed by the said High Court vide order dated 9-1-2018 permitting the appellant for withdrawal of the appeals with liberty to agitate the matter appropriately. It is stated in the applications that the delay is on account of the fact that earlier the appeal was filed bonafidely before another forum, thus, it is requested that the delay in filing the present appeals be condoned, while relying upon the Section 14 of the Limitation Act, 1963. For the reasons as stated above, the delay of 115 days in filing of both the appeals is condoned. Applications are disposed of. SERTA 10/2018 and SERTA 11/2018 :- This judgment shall govern the disposal of the aforestated two appeals i.e. SERTA No. 10/2018 and SERTA No. 11/2018 filed by the same appellant M/s. Pneumatic Power Tools & Co., under Section 35G of the Central Excise Act, 1944 wherein the appellant has made the following common prayers : (i) To set sid....
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....e proposal to impose penalties under Sections 76, 77 & 78 of the Act. 4. Learned Counsel for the appellant has contended that the activity undertaken by appellant was not in the nature of cargo handling services and that appellant was not a cargo handling agency. The Additional Commissioner of Customs & Central Excise, Raipur, vide Order-in-Original dated 30-11-2006 in SERTA No. 10/2018 and Order-in-Original dated 21-2-2007 in SERTA No. 11/2018 confirmed the demand proposed in the show cause notices along with interest and penalties. 5. The appeals filed by appellant against the aforestated Orders-In-Original were dismissed by the Commissioner (Appeals), Central Excise, Raipur-II vide Orders-in-Appeal dated 28-6-2007 and 17-7-2007 respectively. The said orders-in-appeal were challenged before the Tribunal, wherein a stay order dated 28-1-2008 was passed directing the appellant to deposit 50% of the tax demand within the period of 8 weeks from that date. Aggrieved by the said stay order, the appellant filed a Writ Petition (C) No. 3673/2008 before this Court. Though this Court vide order dated 10-7-2008 dismissed the said writ petition but it extended the time to dep....
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.... form be reproduced to understand the delay and laches which are as under :- List of dates and events in SERTA No. 10/2018 15-10-2004 A show cause notice was issued to appellant proposing to recover service tax amounting to Rs. 8,62,924/- alleging that appellant provided the taxable service of cargo handling to Bhilai Steel Plant, Steel Authority of India (SAIL). 30-11-2006 The Ld. Additional Commissioner of Customs & Central Excise, Raipur, vide Order-in-Original confirmed the demand proposed in the SCN along with interest and penalties. 28-6-2007 The appeal filed by appellant against the Order-in-Original, dated 30-11-2006, was dismissed by the Ld. Commissioner (Appeals), Central Excise, Raipur-II vide Order-in-Appeal, dated 28-6-2007. 28-1-2008 In the appeal filed by appellant against the OIA dated 28-6-2007 before the Tribunal, a stay order was passed directing the appellant to deposit 50% of the tax demand within the period of 8 weeks. 10-7-2008 Delhi High Court dismisses applicant's writ petition filed against the Stay Order dated 28-1-2008 passed by the Tribunal. 9-9-2008 Delhi High Court grants further extension of 6 weeks to appl....
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....along with interest and penalties. 17-7-2007 The appeal filed by appellant against the Order-in-Original, dated 21-2-2007, was dismissed by the Ld. Commissioner (Appeals), Central Excise, Raipur-II vide Order-in-Appeal, dated 17-7-2007. 28-1-2008 In the appeal filed by appellant against the OIA, dated 17-7-2007 before the Tribunal, a stay order was passed directing the appellant to deposit 50% of the tax demand within the period of 8 weeks. 10-7-2008 Delhi High Court dismisses applicant's writ petition filed against the Stay Order dated 28-1-2008 passed by the Tribunal. 9-9-2008 Delhi High Court grants further extension of 6 weeks to applicant to make the pre-deposit. 24-11-2008 In the modification application filed by the appellant due to change in legal position, the Delhi High Court orally directed the appellant to move to the Tribunal. 17-3-2009 The Tribunal dismissed appellant's application praying modification of the Stay Order dated 28-1-2008. 6-5-2009 Appellant moves to the Supreme Court against Tribunal's order dated 17-3-2009. 8-5-2009 Pending the appeal before Supreme Court, the Tribunal dismisses appellant's appeal for fai....
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....this Court which was dismissed as withdrawn vide order dated 10-7-2008, granting 8 weeks time from that date to make the pre-deposit. This Court vide order dated 9-9-2008 further granted an extension of 6 weeks for making the payment in compliance of the order dated 28-1-2008 of the Tribunal. On 24-11-2008, in view of the modification application filed by the appellant, this Court orally directed the appellant to move the Tribunal. Thereafter, the Tribunal dismissed the application filed by the appellant praying for the modification of the stay order dated 28-1-2008. The Tribunal during the pendency of the appeal before the Supreme Court vide order dated 8-5-2009 dismissed the appeal of the appellant for failing to comply with the its earlier order dated 28-1-2008. The appeal of the appellant, that was then pending before the Supreme Court was dismissed in default vide order dated 13-7-2009. Clearly, the orders had attained finality. 13. The aforesaid lists of dates clearly demonstrate that the appellant after a gap of almost 51/2 years deposited part of the demand amounting to Rs. 8,62,924/- (in SERTA 10/2018) and Rs. 4,66,953/- (in SERTA 11/2018) vide challans dated 20....
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....ve rejection. 14. As noticed above, show cause notice for clandestine manufacture/sale etc., was issued on 25th March, 1988. The Order-in-Original was passed on 10th July, 1992. Recoveries obviously had to be made, especially once the Order-in-Original had become final. Mere recoveries or even payment after years cannot result in restoration of the appeals or justify condonation of delay in moving the restoration application. 15. Appellant states that, pursuant to the orders passed in October, 2010 in cases of independent companies, in December, 2010, Vice-President (Law) was asked to file restoration application in the appeals before the Tribunal. The plea is not substantiated. It is accepted that no restoration application was filed. Contention that the appellant-company was not aware of default by the Vice-President (Law) and had assumed that the restoration application had been filed, is moonshine, doctored and apparently false for it is accepted that till 2017 no attempt was made to ascertain and verify whether the application was listed and the order passed. Copy of the application is not on record and could never be located. 16. Contention that procee....
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....ck of bona fide and gross negligence. Hence, we do not find any flaw or infirmity in the order of the Tribunal, rejecting the application for condonation of delay in filing the restoration application and accordingly dismissing the application for restoration. Judgments relied by the appellant are based on facts, hence, are not of any help, in view of the facts of the present appeal, which are glaring and deserve no indulgence and leniency. 19. In view of the aforesaid discussion, we do not find any ground to issue notice in the present appeal impugning the order dated 21-2-2018, dismissing the application for condonation and to direct restoration of Excise Appeal No. 5237/1992 to hear the same on merits. As the appeal is dismissed without issue of notice, we do not impose costs. All the pending applications are also dismissed." 16. In the present case also, the order dated 28-1-2008 was passed directing the appellant to deposit 50% of the tax demand. Compliance was mandatory. Against the stay order dated 28-1-2008, the appellant filed writ petition No. 3673/2008 before this Court and the same was dismissed on 10-7-2008 while granting further 8 weeks' time to make t....
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....ant has a very good case or not, mere recoveries/deposit of amount after years cannot allow a party to move an application for the restoration of the appeal. Such a conduct cannot be permitted for maintaining the judicial discipline. The delay is condonable when sufficient cause is shown. Explanation should be from the last day of limitation. Appellant must show diligence and bona fides and not inaction or negligence. Condoning such delays would make the proceedings interminable and would legalize injustice. Compliance of orders and time limit is the norm and mandate. If a party comes with a plea which shows its inaction, casual approach as well as its lack of bona fide, then its claim must be rejected. 20. Mere payment cannot result in restoration of appeal by moving an application where there has been an unexplained delay. The appellant has failed to disclose good cause and justification. The case in hand entirely manifests recklessness, demonstrates lack of bona fides and shows the careless attitude of the appellant. Such a careless attitude and indifference on the part of the appellant in the absence of sufficient explanation and cause for not making payment for over 5 ....