Customs, Excise and Gold Tribunal - Delhi
Priya Rubber Industries (P) Ltd. vs Collector Of C. Ex. on 14 June, 1994
Equivalent citations: 1994ECR119(TRI.-DELHI), 1996(85)ELT273(TRI-DEL)
ORDER
Harish Chander, President
1. By the present application, the appellant has made a prayer for restoration of the appeal. Shri V. Laxmi Kumaran, learned Advocate has appeared. He pleaded that the present application may be treated as an application for recalling of the order. Shri Somesh Arora, learned JDR does not object to the oral request of the learned Advocate. After hearing both sides, in the interest of justice, we treat this application as an application for recalling of the order passed by the Tribunal. Shri V. Laxmi Kumaran, learned Advocate pleaded that there is no wilful negligence or ommission on the part of the appellant. Shri V. Laxmi Kumaran pleaded that earlier the matter was handled by M/s. Narman Associates, Madras. He pleaded that earlier Counsel instead of sending the papers to Shri V. Lakshmi Kumaran, sent the same to the appellants by mistake and as such the papers could not be presented on that date and as such the appellants were prevented by sufficient cause for non-prosecution. Shri Somesh Arora, learned JDR does not object. Shri V. Lakshmi Kumaran, learned Advocate in support of his argument also cited the decision of the Tribunal in the case of Collector of Central Excise, New Delhi v. Leatherite Industries Ltd. reported in 1985 (21) E.L.T. 590 (Tribunal).
2. We have heard both sides and have gone through the facts and circumstances of the case. The facts are not disputed. We do not have any hesitation in accepting the arguments advanced by Shri V. Lakshmi Kumaran, learned Advocate. The bona fide of the appellants should not be doubted. In the case of C.C.E., New Dethi v. Leatherite Industries Ltd . reported in 1985 (21) E.L.T. 590 Tribunal), the Tribunal has held as under :
"8. The question arises whether depriving a party of his right of hearing on merit would be justified for non-compliance of the Procedural Rules?
9. Hon'ble the Supreme Court has answered this question in a decision given in the case of Kalipada Das and Ors. v. Bimal Krishna Sen Gupta reported in All India Reporter 1983 Supreme Court 876 wherein the Lordship of the Supreme Court held -"supplying paper-books is a procedural requirement devised to facilitate rendering justice. In other words, it is a procedural step in aid of justice and not substantive justice itself. undoubtedly, Court's orders have to be obeyed. The institution of judiciary may not be able to function if there is no sanction behind the Court's order. But penalty of failure to comply with Court's order providing a procedural stage in aid of justice must be commensurate with the gravity of the lapse. If the penalty imposed is disproportionate to the gravity of the lapse of omission, the procedural stage instead of becoming a step in aid of justice would be a road block to justice.
10. Keeping in vies this proposition of law as laid down by Hon'ble Supreme Court, we have to find out whether this lapse on the part of the Department/appellant warrants such a penal action like dismissing its Appeal for non-compliance of the order of the Tribunal in not producing the paper-books in time.
11. A perusal of the record shows that though the Department/applicant is negligent and careless in not obeying the order of the court inasmuch as the letter written by the Departmental representatives to the Collector concerned for compliance of the order of the Tribunal yielded no fruit.
12. The Departmental officials particularly Collectors concerned should be vigilant enough to see that the orders of the Tribunal are complied with immediately in the aid of justice. In this case the Collector concerned has now complied with the directions of the Tribunal in filing paperbooks as far back as on 21-9-1984. Though he has taken a lot of time to comply with the directions but in view of the explanation given by him that the file containing the papers was somehow detached from the case file and it remained untraced in spite of persistent efforts made by the Department is sufficient enough to restore the Appeal to its original number."
3. Hon'ble Supreme Court in the case of Kalipada Das and Ors. v. Krishna Sen Gupta reported in AIR 1983 SC 876 have held as under :
"The only question is whether the appellant-tenants who undoubtedly failed to comply with the Court's order to supply the paper-books within the prescribed time should be visited with such serious consequences of a penal nature as described by the High Court itself. Supplying paper-books is a procedural requirement devised to facilitate rendering justice. In other words, it is a procedural step in aid of justice, and not substantive justice itself. Undoubtedly, Court's orders have to be obeyed. The institute of judiciary may not be able to function if there is no sanction behind the Court's order. But penalty of failure to comply with Court's order providing a procedural stage in aid of justice must be commensurate with the gravity of the lapse. If the penalty imposed is disproportionate to the gravity of the lapse or omission, the procedural stage instead of becoming a step in aid of justice would be a road block to justice and at this stage if would be advantageous to recall what this Court said in Sangram Singh v. Election Tribunal, Kotah, (1955) 2 SCR 1 at P. 28 : (AIR 1955 SC 425 at p. 429). It read as under :
"Now a Code of Procedure must be regarded as such. It is procedure, something designed to facilitate justice and further its ends; not a penal enactment for punishment and penalties not a thing designed to trip people up. Too technical a construction of sections that leaves no room for reasonable elasticity of interpretation should, therefore, be guarded against (provided always that justice is done on both sides) lest the very means designed for the furtherance of justice be used to frustrate it. Next there must be ever present to the mind the fact that our laws of procedure are grounded on a principle of natural justice which requires that men should not be condemned unheard that decisions should not be reached behind their backs, that proceedings that affect their lives and property should not continue in their absence and that they should not be precluded from participating in them. Of course, there must be exceptions and where they are clearly defined they must be given effect to. But taken by and large and subject to that proviso, our laws of procedure should be construed wherever that is reasonably possible in the light of that principle.."
6. We feel that omission or lapse arising out of non-compliance with the Court's order was not of such a serious gravity as to close the door of the Court to the appellants by dismissing the appeal. A procedural step which facilitates hearing of the appeal cannot impede access to justice. And that is what has happened."
4. In view of the above discussion, we recall the earlier order and order the listing of the appeal for hearing on merits on the 8th July, 1994.
5. In the result, the miscellaneous application is allowed.