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M/S Global Spin Weave Ltd. Ghaziabad v. Customs, Excise & Service Tax Appellate Tribunal & Others - WRIT TAX No. 560 of 2006  RD-AH 6753 (28 March 2006)
Civil Misc. Writ Petition No.560 of 2006
M/S Global Spin Weave Ltd. Vs. Customs, Excise & Services Tax and others
Hon'ble Sushil Harkauli, J.
Hon'ble Vikram Nath, J.
Memo of appearance filed by Sri Ajay Singh, appearing for the respondents, may be kept on the record.
We have heard the learned counsel for the petitioner at great length.
An appeal was pending before CESTAT which was dismissed by a reasoned order dated 16.9.2005. The petitioner applied for setting aside that order and restoration and re-hearing of that appeal. This prayer has been refused by the impugned order dated 2.2.2006.
The Tribunal says that on 9 dates which were fixed earlier for hearing of the appeal, the counsel for the appellant sought adjournment. On the tenth date no one appeared for the appellant and no adjournment was sought, therefore the appeal was considered and decided on merits.
In these circumstances, and also because the counsel seeking restoration was not able to point out any error in the said final order dated 16.9.2005, therefore restoration was refused.
Because the petitioner is before us in our discretionary jurisdiction, therefore, he cannot be allowed to take advantage of technicalities. Courts and Tribunals are not to be placed at the mercy of the counsel who adopt dilatory tactics and fail to appear on the dates fixed for hearing, thereby prolonging the life of frivolous litigations.
However, we required the learned counsel for the petitioner to point out to us any substantial error in the judgment of the Tribunal dated 16.9.2005. It may be mentioned here that the judgment proceed on the basis that during an inspection of the factory of the petitioner loose papers showing clearance of goods were recovered from the pocket of the factory manager and the cashier. During verification of stock some shortage was found. The entries in the loose papers and batch register were not reflected in RG-I record.
The learned counsel for the petitioner has argued before us that the factory manager of the petitioner was also working in other establishment and the loose papers related to those other establishments. No such ground was taken in the appeal before the Tribunal. No name of any other establishment is mentioned where the factory manager of the petitioner was working part time, as argued. Therefore, this argument of fact is not only frivolous but has been raised orally for the first time in this case which cannot be permitted in a writ petition being a pure question of fact.
Further, the petitioner has not denied that the loose papers were not recovered, as alleged by the department, from the petitioner's factory manager.
In our opinion nothing of substance has been shown by way of error in the order dated 16.9.2005 and the Tribunal is correct when it says that the counsel for the appellant was not able to point out any error in the order dated 16.9.2005.
In the circumstances, it would be a gross abuse of the process of law and would set a bad precedent if restoration of this kind of appeal is permitted. The writ petition is therefore dismissed.
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