UMA Textiles Processors vs Union of India

Akil Kureshi, J.—Rule. Learned counsel Ms. Sejal Mandavia waives rule. The petitioner has challenged an order dated 2-4-2012 passed by the Customs, Excise & Service Tax Appellate Tribunal ("the Tribunal" for short). By such order, the Tribunal was pleased to dismiss the petitioner''s appeal against the appellate order of the Commissioner as an adjudicating authority only on the ground of delay. Admittedly, in presenting such appeal, there was a delay of 215 days. In order to explain such delay, the petitioner had filed separate application. In such application, he had stated, inter alia, that though he did receive the impugned order of the Commissioner on 10-6-2010, he could not take action for filing appeal because of various legal disputes and litigation including the criminal prosecution for the cases of the Excise and Customs Department, which consumed considerable time. It was only when he received a recovery notice dated 22-3-2011 from the local Superintendent of Central Excise, Jetpur, he realized that the appeal was not filed against the order of the Commissioner. He, thereafter, contacted his advocate at Ahmedabad. After collecting and supplying necessary files and documents, the advocate prepared and presented the appeal in April 2011. He stated that there was no deliberate delay on his part, but due to the reasons beyond his control, the appeal could not be presented.

The Tribunal, however, was not convinced by such explanation and dismissed the application for condonation of delay and resultantly, the appeal and connected stay application also.

Having heard the learned counsel for the parties, we are of the opinion that in the facts of the present case, the delay ought to have been condoned. The petitioner had shown reasonable explanation for such delay. It cannot be stated that he had abandoned the cause or had deliberately caused delay in filing the appeal. He pointed out that due to various litigations and resultant excess load on him, he could not present the appeal. The fact that he had omitted to file the appeal came to his notice only when the Superintendent served him with a notice for recovery. Thereupon, within a span of one month, he contacted the advocate, handed over the records and the appeal was filed along with stay application.

The Courts normally prefer the cause of substantive justice when pitted against technicalities. Ordinarily, therefore, the Courts take reasonably lenient view in examining the delay and causes of delay explained by a litigant on the premise that ordinarily, a litigant would not gain by not pursuing his remedies. In the present case, the delay was not so gross, nor was the conduct of the petitioner so negligent that his appeal should have been dismissed without hearing on merits. We are informed that the revenue involved in the present case is close to Rs. 2 crores.

Under the circumstances, the impugned order dated 2-4-2012 of the Tribunal is set aside. The delay caused in filing appeal before the Tribunal is condoned. Resultantly, the appeal along with stay application stand revived.

It is clarified that we have expressed no opinion on the merits of the contentions of the petitioner in the above mentioned appeal or the stay application. It will be open for the Tribunal to take an independent view on all aspects of the matter, including on the question of pre-deposit. With above directions, the petition is disposed of. Rule is made absolute accordingly, with no order as to costs.