STAR BATTERY LTD. Vs. ASSTT. COMMR. C. EX.

JUDGEMENT

(1.) Affidavit of service filed in Court today be kept on record.

(2.) In this writ application the Petitioner, a private Limited Company within the meaning of the Companies Act, 1956, has challenged the order dated 19th April, 2010 dismissing the application for condonation of delay and consequently dismissing the stay petition and the appeal on several grounds.

(3.) It appears that being aggrieved by the order dated 31st March, 2008 passed by the Commissioner, Central Excise, Kolkata-IV, Commissionerate, the Respondent No. 2, the Petitioner was required to file an appeal before the Learned Customs, Excise and Service Tax Appellate Tribunal, East Zonal Bench, Kolkata. Incidentally, the Petitioner has two directors - S.N. Kejriwal and S.K. Kejriwal. At the point of time the appeal was required to be filed before the Tribunal, S.K. Kejriwal, one of the directors, was seriously ill. According to the Petitioner, although prompt action should have been taken for filing of the appeal against the order dated 31st March, 2008 within the statutory period of 60 days, that is, 18th May, 2008, the appeal was actually filed on 23rd January, 2009, along with an application for condonation of delay since there was a delay of 232 days. Subsequently, on 19th April, 2010 the appeal along with the applications praying for waiver of pre-deposit and the application for condonation of delay came up for hearing before the Tribunal. The Tribunal recalled its earlier order dated 6th October, 2009 and restored the appeal. Thereafter, the Tribunal proceeded to hear the application for condonation of delay. According to the Petitioner, though there was no mala fide intention in preferring the appeal beyond the prescribed period of time, the Tribunal, however, arbitrarily by quoting a particular paragraph from the application for the condonation of delay, dismissed the said application as well as the appeal. Submission is that the Tribunal without appreciating the background for which the delay was caused, abruptly dismissed the application for condonation of delay. It has been stated that the apparent reason which the Tribunal arrived at the hearing was that since the Petitioner had made an averment to the effect that it had many personnel to look after the various matters in the company and since only one of the two directors was keeping unwell, delay should not have been caused. According to the Petitioner, the Tribunal should not have quoted a few sentences from the application and relying thereon should not have dismissed the same. Submission is it is a normal feature in a corporate structure that although there are employees at different levels and there is division of labour, but at the same time it has to be kept in mind that important and major policy decisions affecting the company are usually taken by the persons who normally occupy very senior positions that is, who are usually the directors of the company. According to the Petitioner, in the instant case when the appeal was supposed to be filed, one of the directors S.K. Kejriwal was seriously ill and was bed ridden and S.N. Kejriwal, the other director and the brother of S.K. Kejriwal was completely engaged in looking after the treatment of his brother. Submission is though delay was sufficiently explained in the application, however, the Tribunal passed the order rejecting the said application relying only on paragraph 5.