Telangana High Court
M/S Heemankshi Bakers Pvt. Ltd. vs Commissioner Appeals on 11 July, 2023
Author: N.Tukaramji
Bench: N.Tukaramji
HON'BLE THE CHIEF JUSTICE UJJAL BHUYAN
AND
HON'BLE SRI JUSTICE N. TUKARAMJI
WRIT PETITION No.16741 of 2023
ORDER :(Per Hon'ble the Chief Justice Ujjal Bhuyan) Heard Mr. Thomas George, learned counsel for the petitioner and Mr. Dominic Fernandes, learned counsel for the respondents.
2. By filing this petition under Article 226 of the Constitution of India petitioner has assailed legality and validity of order dated 25.04.2023 passed by the Customs, Excise and Service Tax Appellate Tribunal, Regional Bench at Hyderabad (briefly 'CESTAT' hereinafter) declining to condone the delay in filing Appeal (Diary) No.301452023.
3. On 03.07.2023 we had directed learned counsel for the petitioner to file an additional affidavit to bring on record the application filed by the petitioner for condonation of delay before CESTAT. Pursuant to said order petitioner has filed memo dated 2 HCJ & NTR, J W.P.No.16741 of 2023 04.07.2023 placing on record the application filed by the petitioner before CESTAT for condonation of delay.
4. We may mention that the delay is of 1249 days. Relevant portion of the application reads as follows:
"2. It is further humbly submitted that the Appellant Company proposed to file a wilt petition in the year 2017 itself to challenge the Order of The Appellate Authority vide ORDER-IN-APPEAL NO. HYD- EXCUS-002-APP-73 to 76-16-17 dated 10/03/2017, however, the matter was assigned to Advocate P. Naveen Ram (18094) and thereafter the Appellant Company was under the impression that the writ petition was already filed as the Appellant Company also signed the material papers of the writ petition.
3. It will not be out of place to submit that the Managing Director of the Appellant Company Mr. Raikumar Agarwal died on 27/07/2020. Thereafter, the entire world was reeling under the COVID pandemic to which the Appellant Company was also no exception and the Appellant Company incurred huge losses due to COVID as well as due to the demise of the Managing Director.
4. It is humbly submitted that after the death of the Managing Director, when the other Directors who are none other than the family members of the Managing Director who passed away verified the records of the office of the Appellant Company, they came to know that huge amount of Rs.66,00,009/- was to be refunded for which a writ petition was supposed to be filed.
5. It is respectfully submitted that upon verification of the records of the Telangana High Court website the Appellant Company was appalled to see that no writ 3 HCJ & NTR, J W.P.No.16741 of 2023 petition was ever filed since 2017 by the Appellant Company thus, the present petition is filed for condoning the delay of 1249 days in filing the petition.
6. It is humbly submitted that the delay in filing the appeal is due to the reasons aforementioned and for no other want or reason in view of the judgment of the Hon'ble High Court in Ms Ravi Foods Pvt. Ltd. V. Commissioner (Appeals) in WP No, 6448/2017 dated 24/01/2018 the Appellant has merits in the main case for which a refund/rebate of the amount of Rs.66,00,009/- that the Appellant Company is entitled to and only due to the delay for no fault of the Appellant Company such a huge loss will lead to serious prejudice of the company of the Appellant. I further humbly submit that no prejudice will be caused to the respondents in the event that the delay is condoned, in the event that the delay is not condoned, then the Appellant Company will be put to serious losses and damages for which no amount of money will be suitable compensation.
7. It is humbly submitted that the impugned order was received on 05/04/2017 and thus the limitation period would commence from the 05/07/2017 and the same would be computed up to today 23/03/2023 (i.e., 1249 days) wherein the period from 15/03/2020 to 01/07/2022 (i.e., 838 days) shall be excluded as the Limitation period in all laws were waived by virtue of Judgment of Hon'ble Supreme Court. The period from 06/04/2017 to 04/07/2017 is the 90 days provided by the law to file the Appeal.
8. Hence, it is humbly prayed that this Hon'ble Tribunal will be pleased to condone the delay of 1249 days in filing the main appeal."
5. However, the above explanation of the petitioner was not accepted by the CESTAT and by order dated 25.04.2023 refused to 4 HCJ & NTR, J W.P.No.16741 of 2023 condone the delay and consequently dismissed the appeal as being barred by limitation. Order dated 25.04.2023 reads as follows:
"The Appeal has been filed with a delay of 1249 days. The Impugned Order was passed on 05.04.2017 and the Appellant were required to file this by July, 2017. They have filed the Appeal only on 14.03.2023. Learned Counsel submits that this enormous delay is on account of expiry of their Managing Director. On a query as to when the MD expired, he states that he expired in 2020. Therefore, we do not see any reason as to why the Appeal should have been filed after 6 years of receiving the impugned OIA. Not being satisfied with the explanation given by the learned Counsel for the Appellant, the COD Petition stands dismissed."
6. In the hearing today learned counsel for the petitioner submits that issue raised in this writ petition is squarely covered by the decision of this Court dated 24.01.2018 passed in Writ Petition No.6448 of 2017 [M/s.Ravi Foods Pvt. Ltd. v. Commissioner (Appeals)].
7. Without entering into the merit, we are of the view that the petitioner did explain the reasons for belatedly approaching the CESTAT. In such circumstances, we feel that it would meet the ends of justice if the appeal is heard and decided on merit rather than non-suiting the petitioner on the ground of limitation. 5
HCJ & NTR, J W.P.No.16741 of 2023
8. Consequently, we set aside the order dated 25.04.2023 and direct the CESTAT to take on board appeal (Diary) No.301452023 and proceed to hear and decide the same on merit in accordance with law after notifying the parties.
9. Writ petition is accordingly allowed. No costs.
Pending miscellaneous applications, if any, shall stand closed.
___________________ UJJAL BHUYAN, CJ _________________ N. TUKARAMJI, J Date: 11.07.2023 ajr