Yashpal Gupta vs Uoi And Ors.
2010 Latest Caselaw 3278 Del

*               IN THE HIGH COURT OF DELHI AT NEW DELHI

                    CM Nos. 2338, 2339 and 2340 of 2010

                                                in

                                CUS.A.C.No.18 OF 2007

%                                                    Date of Decision: 15th July, 2010.

        YASHPAL GUPTA                                          . . . Appellant/Applicant

                                through :              Mr. Gaurav Kumar Singh with
                                                       Mr. Manoj Tiwari, Advocates

                                         VERSUS

        UOI AND ORS.                                                  . . .Respondents

                                through:               Mr. Mukesh Anand, Advocate


CORAM :-
    HON'BLE MR. JUSTICE A.K. SIKRI
    HON'BLE MR. JUSTICE REVA KHETRAPAL

        1.      Whether Reporters of Local newspapers may be allowed
                to see the Judgment?
        2.      To be referred to the Reporter or not?
        3.      Whether the Judgment should be reported in the Digest?

A.K. SIKRI, J. (Oral)

1. CM Nos.2338/2010, 2339/2010 & 2340/2010

The first application, i.e. CM No.2338 of 2010 moved by the

appellant is for restoration of the appeal, which was dismissed in

default on 28.10.2009. Second and third CM, i.e. 2339, 2340/2010

are for condonation of delay in filing/refiling the first application.

It is stated that there is delay of 5 days in filing and 11 days in

refiling the appeal.

2. There is history of frivolous proceedings initiated by the appellant

before he filed the present appeal. In this appeal though the

order of the Customs Excise and Service Tax Appellant Tribunal

(hereinafter referred to as „the Tribunal), which was passed on

21.11.2005. However, no appeal was preferred immediately

thereafter. One writ petition challenging that order was filed

much belatedly in February, 2007. This writ petition was returned

under objection on 09.02.2007. The appellant took substantial

time in removing those objections, as the writ petition was

returned under objections four times. When ultimately, the writ

petition cam up for hearing on 16.03.2007, the Division Bench

dismissed the said writ petition. It is alleged in this appeal that

this writ petition was dismissed as not maintainable and liberty

was granted to the petitioner to take appropriate proceedings in

accordance with the law. However, the said order has not been

placed on record. Thereafter, the present Appeal was filed on

03.03.2007. Again there were so many objections raised by the

Registry. The appellant kept on receiving this appeal back from

removing the objections, but would not remove all the objections.

This process went on for almost nine months. After removing the

objections finally, this appeal came up for the first time for

hearing on 07.12.2007. By that time, more than two and half

years had passed from the date of passing of the order by the

Tribunal. Along with this appeal, applications for the condonation

of delay in filing the appeal as well as refiling the appeal was filed.

There was delay of 162 days in fling the appeal. Notice in these

applications was issued when the reply to these applications were

filed by the respondent. When the matter came up for hearing on

02.07.2009, request for short adjournment was made by the

appellant, which was adjourned to 31.07.2009. On 31.07.2009

again request was made by the counsel for the appellant for

adjournment. Matter was once again adjourned to 22.09.2009.

On this day, yet another request for adjournment was made on

the plea that counsel has recently been engaged. At his request,

matter was adjourned to 28.10.2009. However, this time the

Court categorically observed while adjourning the case that no

further adjournment shall be granted. Notwithstanding specific

orders on the last date, the appellant did not even chose to

appear on 28.10.2009.

3. In these circumstances, the following order was passed:

"Learned counsel for the Appellant has not appeared even on the second call.

Order sheet shows that the Appellant has been taking repeated adjournments and on the last date while giving last opportunity to the Appellant it was made clear that no further adjournment shall be granted.

In these circumstances, we have left with no alternative but to dismiss this appeal for non-prosecution and non- appearance."

4. In the application for restoration moved by the appellant does not

deny that the appellant knew about the date of hearing, i.e.,

28.10.2009. No valid reason at all is given for non-appearance.

Strange reason which is given is that due to some personal

difficulty of the appellant, necessary documents in the file could

not be organized and coordinated with counsel and hence files

could not be organized as per Court record viz-a-viz lack of

instructions to the Advocate concerned. Even if that is presumed

correct, there was no reason not to appear in the Court on that

date and pleaded the aforesaid ground for taking an adjournment.

The manner in which the matter has proceeded, it gives clear

impression to us that the aforesaid reason given is also totally

frivolous and false.

5. Be as it may, in any case it is not a valid reason for non

appearance.

6. It may further be observed that when the appellant came to know

that the appeal is dismissed for non-appearance on 28.10.2009,

no immediate steps were taken by filing the application for

restoration. Instead, the appellant waited till December, 2009 to

file the application which was also got listed only in February

2010. This also gives an impression that the appellant was

waiting for change of Roster/Bench and got the application listed

only in February 2010 because of this reason.

7. We may also point out at this stage that the appellant is a

Chartered Accountant and the allegation against him is that he

had held that M/s Himgiri Overseas and M/s Deepshikha Overseas

in making a false claim for duty drawback. Such duty drawback

was obtained by the aforesaid firms from the Government against

some readymade garments exports, but it was ultimately found

that the consignment contained only rags and not the readymade

garments, which was supposed to be exported. When the

proceedings were initiated against the aforesaid company and the

appellant was implicated and arrayed in those proceedings

keeping in view his role, he made a statement before the

concerned Officer that it is he who had created the aforesaid false

firms to withdraw the drawback claim and this fact was

categorically admitted by him. He also in his statement submitted

that he was doing so on commission basis. He went to the extent

of conceding that all the bank accounts of the firms were opened

at his instructions. On this basis, penalty of Rs.2 lakhs was

imposed against him, which has been sustained by the Tribunal as

well. Present appeal is confined to the said penalty. The entire

case based on the facts that no substantial question of law arises.

8. In view of the above, we, thus, find that no substantial question of

law arises. The proceedings are nothing but misuse of process of

law. We, therefore, dismiss all these applications with cost of

Rs.10,000/-. The cost shall be paid to Delhi High Court Mediation

and Conciliation Centre.

(A.K. SIKRI) JUDGE

(REVA KHETRAPAL) JUDGE JULY 15, 2010.

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