2019 (4) TMI 1053

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....the Department had filed Appeal before the Supreme Court. Such Appeal was disposed of by an order dated 31/07/2015 holding that the Appeal would be maintainable before the High Court. The Appeal was therefore dismissed by the Supreme Court on such ground, giving liberty to the Department to approach the High Court. 2. The present Appeal is filed after a considerable period from such date of disposal of the Department's Appeal by the Supreme Court. In order to explain such delay, in the Affidavit in support of Notice of Motion, following averments are made : "6. I say that the Honourable Supreme Court was pleased to dismiss Civil Appeal No.517 of 2006 [D24110 of 2005] by its Order dated 31­07­2015. The Honourable Supr....

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....an Appeal before this Honourable Court as per liberty granted by the Honourable Supreme Court vide its Order dated 31­07­2015 passed in Civil Appeal No.517 of 2006 [D24110 of 2005]. 9. I say that it is only on receipt of a letter from the Deputy Commissioner (Legal), Vishakapatanam dated 1512­2017, that the case file was traced. I say that the CESTAT, Vishakapatanam had disposed of an Appeal filed by the department by applying its Order in the case of Racal Survey Overseas Ltd. vs. CCE, Mumbai [2005­189­ELT­67]. I say that the Deputy Commissioner (Legal), Vishakapatanam, sought details as to whether the department had filed an appeal before this Honourable Court. I say that it was only then it was noticed th....

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....uld not be condoned. 4. Having thus heard the learned Counsel for the parties and having perused the documents on record, we may recall, the Department had initially approached the Supreme Court by filing Appeal under bona fide belief that such Appeal against the Judgment of CESTAT was competent before the Supreme Court. The Supreme Court, however, expressed a different view, dismissing the Appeal of the Department. While doing so, liberty was kept open for the Department to file Appeal before the High Court. It is true that even after this order was passed by the Supreme Court, the Department has taken considerable time in filing Appeal before the High Court. However, according to the Department, the order of the Supreme Court was not r....