THE HON’BLE THE CHIEF JUSTICE SRI KALYAN JYOTI SENGUPTA AND THE HON’BLE SRI JUSTICE SANJAY KUMAR C.E.A.No.69 of 2014 DATED:18.6.2014 Between:
M/s. Sudha Sewing Threads Ltd., Kakinada.
And … Appellant Commissioner of Central Excise, Service Tax & Customs, Visakhapatnam.
….Respondent THE HON’BLE THE CHIEF JUSTICE SRI KALYAN JYOTI SENGUPTA AND THE HON’BLE SRI JUSTICE SANJAY KUMAR C.E.A. No. 69 of 2014 Judgment: (per the Hon’ble the Chief Justice Sri Kalyan Jyoti Sengupta) This appeal is sought to be preferred on the following suggested questions of law:
A. Whether in the facts and circumstances of the case, the
Tribunal was correct in rejecting the Application for restoration of appeal without considering the adjournment letter dt:17-12-2013 and submissions of the Counsel, more so after having observed that there was no regular Member (Judicial) for Bangalore Bench and that the bench was constituted intermittently?
B. Whether in the facts and circumstances of the case, the Hon’ble Tribunal is not erroneous in its approach by misreading the material on record and is justified in concluding that the appellants were negligent in pursuing the case with proper care more so, when the affairs of the company are not in their hands during the period of delay?
C. Whether in the facts and circumstances of the case, the Hon’ble Tribunal is correct in rejecting the restoration application when the appellant company is in the process of revival and has a good case in Appeal?
Whatever may be the camouflaging exercise by the appellant before us, the admitted position is that the appeal was sought to be preferred before the learned Tribunal with the prayer for condonation of delay of twelve (12) years. It appears, the learned Tribunal dismissed the application for condonation of delay on account of non- representation. Thereafter, an application was made basically to get the condonation of delay application restored consequent thereto. The learned Tribunal, by the impugned order, rejected such attempt of restoration. Obviously, if the prayer for condonation of delay is allowed, then appeal is required to be considered for admission. But with the dismissal of condonation of delay application, the appeal was dismissed logically. Even looking at the grounds mentioned for condonation of delay, we find no authority can accept such an application with the stated reasons. The ground basically is that the Official Liquidator did not take any action against the impugned order of assessment. Because of the inaction, the appellant could not come before the Tribunal in time. We are not at all impressed with this argument or the ground taken for. Under the law, once the Official Liquidator is appointed and takes possession of the affairs of the company, it is the Official Liquidator, who has to take all legal measures, as the company could have done. Therefore, any act and omission of the Official Liquidator cannot be a ground for condonation. Once a legitimate right was thought not to be asserted by O.L., consequently, the same being rendered time barred, it cannot be allowed to be revived under the law. On the date of presentation of the appeal, the appellant is deemed to have lost all right as the appellant was bound by the act and omission of the Official Liquidator. That cannot be questioned. Hence, we do not find any element of law in this matter so that we can admit the same.
The appeal is accordingly dismissed.
Consequently, the miscellaneous petitions, if any pending, shall also stand dismissed. No order as to costs.
K.J. SENGUPTA, CJ SANJAY KUMAR, J 18th June, 2014 PNB/VA