Gujarat High Court
Commissioner Of Central Excise And ... vs Essar Steel Ltd on 12 November, 2014
Author: Akil Kureshi
Bench: Akil Kureshi, Vipul M. Pancholi
O/OJCA/494/2014 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL APPLICATION (OJ) NO. 494 of 2014
In
STAMP NUMBER NO. 725 of 2004
With
STAMP NUMBER NO. 725 of 2004
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COMMISSIONER OF CENTRAL EXCISE AND CUSTOMS SURAT-
I....Applicant(s)
Versus
ESSAR STEEL LTD.....Respondent(s)
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Appearance:
MR YN RAVANI, ADVOCATE for the Applicant(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE AKIL KURESHI
and
HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
Date : 12/11/2014
ORAL ORDER
(PER : HONOURABLE MR.JUSTICE AKIL KURESHI)
1. This application is filed by the department seeking condonation of delay of 1015 days in preferring the Tax Appeal. Initially the explanation rendered in the application itself was rather brief to the effect that soon after receipt of a copy of the judgement of the Tribunal dated 11.12.2000, the papers were handed over to the then standing counsel for preferring the appeal. The department pursued on several occasion with the counsel for preferring appeal, however, same was filed only on 22.4.2004. Hence the delay.
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2. On 18.9.2014, the Court required the authority to file additional affidavit giving reasons why the appeal which was filed in the year 2004, was placed before the Court for hearing only in the year 2014. The additional affidavit dated 7.10.2014 thereupon came to be filed by one Ravindra Kumar Tiwari, Assistant Commissioner of Central Excise, Customs and Service Tax, Surat. In such affidavit, he has pointed out that the appeal was dismissed for non removal of office objections. The department thereafter, entered into series of communications with the counsel. It is stated that on 19.1.2007 new Assistant Solicitor General was appointed. Large number of matters needed to be attended which had gone by default. It was only thereupon noticed that the present appeal had been dismissed for default. Only thereupon an application for restoration was moved which was also allowed. The department was also permitted to reconstruct the appeal. Eventually, the application for condonation of delay was also filed.
3. It can thus be seen that there has been gross delay at the hands of the department in first preferring and thereafter, pursuing his appeal. For questioning the judgement of the Tribunal passed in December 2000, the appeal was filed only in April 2004. Such appeal was also not pursued with any sincerity. Even after the appeal was dismissed for non removal of office objection, no steps were taken for restoration for another three years. The present application for delay condonation has been filed only on 26.8.2014.
4. Quite apart from inordinate delay of 1015 days which has Page 2 of 4 O/OJCA/494/2014 ORDER remained substantially unexplained, there has been further delay in pursuing the appeal itself. In essence, therefore, taking cognizance of this appeal and calling upon the respondent to reply to the application for condonation of delay and thereafter, to the appeal on merits, would mean that the assessee's litigation which received a favourable judgement in the year 2000 would be nearly 14 years later called upon to defend the same. Period of limitation is prescribed essentially to put the winning party to ease that after lapse of such period and atleast after a reasonable period thereafter, the issues would achieve finality and the judgement creditor would be allowed to enjoy the fruits of judgement without a hanging sword of the decision being overturned. Entertaining the department's appeal at this stage would totally frustrate this basic purpose. Additionally, we also notice that the issue broadly pertains to credit for Naptha used by the assessee for generation of power which is captively used. It would appear therefore, that the judgement of the Supreme Court in case of Maruti Suzuki Limited v. Commissioner of Central Excise, Delhi III reported in (2009) 9 Supreme Court Cases 193, would not aid the department since in such case electricity generated was excess and was sole outside the factory.
5. For all these reasons, the application for condonation of delay is dismissed.
6. Resultantly, the appeal does not survive and is dismissed.
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(AKIL KURESHI, J.)
(VIPUL M. PANCHOLI, J.)
raghu
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