Prakash Charia vs Commissioner of Customs

M.S. Shah, J.—On advance copy being served Shri R.J. Oza, learned Counsel waives service of notice of Rule on behalf of the respondent in Special Civil Application No. 7817/2014 and Shri Hriday Buch, learned Advocate, who is a Panel Advocate, waives service of notice of Rule on behalf of the respondent in Special Civil Application Nos. 7818/2014 and 7819/2014. In the facts and circumstances of the case and with the consent of learned advocate appearing on behalf of the respective parties, present petitions are taken up for final hearing today.

1.1 As common question of law and facts arise in present group of petitions, all these petitions are decided and disposed of by this common judgment and order. In all these petitions, the petitioner has prayed to quash and set aside the impugned common order dated 7-4-2014 passed by the learned Customs, Excise & Service Tax Appellate Tribunal, Ahmedabad (hereinafter referred to as "Tribunal") in Miscellaneous Application Nos. 12114/2014 to 12116/2014 by which the learned Tribunal has refused to restore the main appeals along with the applications for condonation of delay which earlier came to be dismissed for non-prosecution. The petitioner has also prayed to quash and set aside the order dated 30-10-2013 passed vide Order Nos. A/11549-11551/2013 in respective appeals by which the learned Tribunal dismissed the applications for condonation of delay in preferring the respective appeals, dismissed the respective appeals as well as the stay applications for non-prosecution.

We have heard Shri Prabhakar Upadhyay, learned advocate appearing on behalf of the petitioner, Shri R.J. Oza, learned Counsel appearing on behalf of the respondent in Special Civil Application No. 7817/2014 and Shri Hriday Buch, learned advocate appearing on behalf of the respondent in Special Civil Application Nos. 7818/2014 and 7819/2014.

At the outset it is required to be noted that the hearing of the applications for condonation of delay in preferring the appeals were adjourned to 30-10-2013 vide order dated 10-10-2013. It is true that the petitioner-original appellant was informed about the said date of hearing. However, by application dated 24-10-2013, the petitioner-original appellant requested to adjourn the hearing. However, the said applications for adjournment was taken up for hearing of the learned Tribunal on 30-10-2013 itself and on 30-10-2013 the learned Tribunal rejected the application for adjournment and simultaneously dismissed the applications for condonation of delay in respective appeals and consequently dismissed the respective appeals with the applications for stay for non-prosecution.

Having heard learned advocate appearing on behalf of the respective parties and going through the impugned orders, we are of the opinion that the learned Tribunal has taken too technical view in not restoring the applications for condonation of delay, respective appeals and the stay applications. It prima facie appears to us that as such there was no mala fide intention on the part of the petitioner in prolonging the hearing and/or in not appearing before the learned Tribunal on 30-10-2013. Even no such observations have been made by the learned Tribunal while passing the impugned orders rejecting the restoration applications. In the facts and circumstances of the case, we are of the view that if on imposing the reasonable cost, to be deposited with the concerned Department, the respective applications for condonation of delay and respective appeals and the applications for stay are restored, it will meet the ends of justice. It is a cardinal principle of law and as observed by the Hon''ble Supreme Court as well as this Court in catena of decisions, normally the cases should be decided on merits rather than non-suiting them on the technical ground of delay and/or for non-prosecution, unless it is found that there was a deliberate attempt on the part of the concerned person in delaying the hearing and/or there was any other mala fide intention on the part of the concerned appellant. That is not the case here. In view of the above and for the reasons stated above, all these Special Civil Applications succeed. Impugned Order Nos. A/11549-11551/2013, dated 30-10-2013 in Appeal Nos. C/10100-10102/2013 and Order Nos. M/12114-12116/2014, dated 7-4-2014 in Restoration Application Nos. C/ROA/13883-13885/2013 in Appeal Nos. C/10100-10102/2013 passed by the Customs, Excise & Service Tax Appellate Tribunal, West Zonal Branch, Ahmedabad is hereby quashed and set aside and the respective applications for condonation of delay and the respective appeals along with the respective applications for stay, etc., in the respective appeals are ordered to be restored to file on condition that the petitioner shall deposit a sum of Rs. 10,000/- per matter with the respondent within a period of two weeks from today and on production of the receipt of the deposit of such amount, the learned Tribunal to consider the respective applications for condonation of delay and thereafter if the delay is condoned, to consider the appeals as well as respective applications for stay, etc., in respective appeals in accordance with law and on merits. Rule is made absolute to the aforesaid extent in each of the petitions.