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OJMCA/251/2010 2/ 2 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
MISC.
CIVIL APPLICATION No. 251 of 2010
In
TAX
APPEAL No. 954 of 2005
=========================================================
J.M.INDUSTRIES
- Applicant(s)
Versus
COMMISSIONER
OF CENTRAL EXCISE - Respondent(s)
=========================================================
Appearance
:
MS
MEGHA JANI for
Applicant(s) : 1,
RULE SERVED for Respondent(s) : 1,
MR RJ OZA
for Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE AKIL KURESHI
and
HONOURABLE
MISS JUSTICE S.G.GOKANI
Date
: 17/02/2011
ORAL
ORDER
(Per
: HONOURABLE MR.JUSTICE AKIL KURESHI)
Applicant
seeks restoration of Tax Appeal No.954/2005 after condoning delay.
Tax
Appeal came to be dismissed for non compliance with order dated
6.12.2007 by which appellant was directed to file paper book within
four weeks. Since there is considerable delay, we inquired with the
counsel for the applicant regarding explanation for such delay.
On
the basis of contents of application, counsel submitted that advocate
who had filed Tax Appeal was not regularly practising in Ahmedabad.
Neither the advocate nor the applicant were therefore, aware about
order dated 6.12.2007. Consequently, dismissal of appeal in default
for non compliance of such an order. He pointed out that only
recently when department on the basis of order of the tribunal sought
recovery from the applicant, on inquiry it was found that appeal has
abated.
We
are of the view that there is considerable delay in filing
restoration application. However, looking to the serious
repercussions on the applicant, if tax appeal is not heard on merits
and for larger interest of justice, overruling technical default, we
are inclined to restore the tax appeal after condoning delay however,
subject to cost.
In
the result, application is allowed. Tax Appeal No. 954/2005 is
restored to file. To be placed for admission hearing on 28.3.2011.
Applicant shall pay cost of Rs.5000/- to the respondent.
Disposed
of accordingly. Rule made absolute accordingly.
(Akil
Kureshi,J.)
(S.G.
Gokani,J.)
(raghu)
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