Dhirubhai Naranbhai Patel, J. - (1.) THIS writ petition has been preferred against the impugned order dated 4th March, 2014, passed by the Customs, Excise & Service Tax Appellate Tribunal, Eastern Zonal Bench, Kolkata (Hereinafter to be referred to as 'CESTAT, Kolkata'). Vide the said order, Misc. Application No. S.T./MISC/496/2012, filed for condonation of delay of 536 days in filing Appeal No. S.T.543 of 2012, was dismissed by the CESTAT, Kolkata for there being no reasonable ground for condonation of delay and hence, the stay petition, bearing Stay Petition No. SP 1216 of 2012 and Appeal No. ST 543 of 2012 were also dismissed and therefore, appellant of the said appeal has preferred this writ petition. Submission made on behalf of the petitioner
(2.) NO intentional delay on the part of the petitioner: Counsel for the petitioner submitted that the Order in Original: 10/S.Tax/Commr/2011 was passed by the Commissioner, Central Excise & Service Tax, Jamshedpur on 1st April, 2011, which was received by this petitioner on 5th April, 2011. Huge liability of approximately Rs. 1,55,00,000/ - has been imposed upon this petitioner towards service tax and a penalty of approximately Rs. 1.60 crores has also been imposed. The petitioner, thereafter, engaged Advocate Shri R.N. Sarkar and papers were handed over to him on 9th April, 2011. He prepared memorandum of appeal and this petitioner signed the same on 30th May, 2011, but, thereafter, the said Advocate had not filed the appeal. Meanwhile, demand letter dated 13th September, 2012 (Annexure 2 to the Memo of this petition) from the Superintendent, Central Excise, Jamshedpur was received and thereafter, petitioner received the papers from the office of the Advocate Shri R.N. Sarkar on 30th November, 2012. Affidavits sworn in by the partner of the petitioner not appreciated by the CESTAT, Kolkata: It is submitted by learned counsel for the petitioner that an affidavit sworn in by one of the partners of the petitioner -firm, stating in detail the chronological sequence of events that led to the alleged delay in filing the appeal, has also been produced before the CESTAT, Kolkata."
(3.) CERTIFICATE given by the junior to the erstwhile Advocate of the petitioner was not appreciated by the CESTAT, Kolkata: A certificate given by junior to the Advocate Shri R.N. Sarkar, namely Shri Nirmal Kumar Singh was also placed before the CESTAT, Kolkata. In that certificate it was stated that file of the petitioner was taken by Mr. R.N. Sarkar for filing appeal, but, due to his illness the papers could not be completed and appeal could not be filed. Thereafter, papers were returned. Said Advocate R.N. Sarkar later expired on 12.11.2013. Thus, after receipt of the papers on 30th November, 2012, immediately this petitioner appointed Shri Rajiv Ranjan Mittal and Shri Arvind Modi on 2nd December, 2012. They immediately prepared memorandum of appeal in Form ST -5. The memorandum along with petition for condonation of delay and stay petition was signed by this petitioner on 23rd December, 2012 and the appeal was filed before CESTAT, Kolkata on 24th December, 2012. Thus, there was a delay of 536 days in preferring the appeal under Section 35B(3) of the Central Excise Act, 1944, which was explained showing aforesaid reasons before the CESTAT, Kolkata, but, the same was not properly appreciated by the CESTAT, Kolkata and inspite of there being reasonable grounds, application for condonation of delay was rejected. Therefore, it has been prayed that order dated 4th March, 2014 passed by the CESTAT, Kolkata in Miscellaneous Application No. S.T./MISC/496/2012 filed in Appeal No. S.T./543/2012 -DB may kindly be quashed and set aside, delay of 536 in filing the appeal may be condoned and appeal preferred by this petitioner along with the stay application may be heard on merits and the petitioner ensures that he will sought for no unnecessary adjournment and cooperate with the CESTAT, Kolkata in the matter. Submissions made on behalf of the respondents:;