Allowed

Wings Apparels Pvt. Ltd. v. Union of India and 2 Ors.

Bombay HC22 Apr 2010WP/2359/2009

Case brief

AI extract

What is this about?

The High Court allowed three writ petitions, holding that the 2nd Appellate Authority has implied discretion to condone delay in filing appeals. The court directed the authorities to admit the appeals if the petitioners deposit the EMD amount and pay costs.

What did the court decide?

The 2nd Appellate Authority directed to admit second appeals on depositing EMD in cash and payment of Rs. 50,000 costs.

2.It is the case of the petitioners that the appeals could not be filed within the stipulated period of 45 days from the date of passing of the order for the reason that one of their employees/officers, who was entrusted with the job of handling export matters, had indulged in anti-company activities and did not file the relevant documents showing fulfilment of the said export obligations, nor informed the petitioners of the impugned order and, therefore, the appeals were filed as soon as the company came to know of the fact, which led to the dismissal of the said employee/officer on 20-10-2008 and the appeals were preferred on 18-11-2008. It is submitted that the Appellate Authority had the discretion of condoning the delay as this was good and sufficient reason.

Notification dated 12-11-1999 governing the subject-matter provides for an appeal against forfeiture of EMD/BG/Post Dated Cheque, to be made to the 1st Appellate Authority i.e., the Textile Commissioner within 45 days of the

despatch of the order. Clause 16(vii) provides that an exporter who is not satisfied with the decision of the Textile Commissioner in the matter of a stay application or an appeal, may prefer an appeal against such decision within 45 days of the despatch of the order of the 1st Appellate Authority to the 2ndAppellate Authority for a decision thereon.

4.It is submitted by the learned counsel appearing for the petitioners-company that the petitioners-company will be deprived of the remedy of appeal to the 2nd Appellate Authority if the delay is not condoned for no fault on their part and due to the misdemeanour on the part of their officer and that the petitioners are prepared to pay costs to the respondents.

5.The learned counsel appearing for respondent No.3 submits that the ground canvassed by the petitioners-company for seeking condonation of delay cannot be considered to be good and sufficient reason. She submits that firstly, it is false to their own knowledge and secondly, one does not know as to whether the employee has been made a scapegoat in order to gain time.

6.In our view, though the Notification does not expressly provide that the Appellate Authority has power to condone the delay, it will have to be read into the Notification as a discretion vested with the Appellate Authority. As and when remedy is provided by the statute of preferring an appeal or second appeal, the Appellate Authority is also vested with the discretion to condone delay in filing the same, though not expressly but it is to be implied in the power of the Appellate Authority which will be in consonance with the principle enumerated in the law of limitation. In order to compensate the respondents, the petitioners can always be directed to pay costs. We, therefore, allow all the three petitions and direct the 2nd Appellate Authority to admit the second appeals preferred by the petitioners on the petitioners depositing the amount of EMD which was furnished by way of Bank Guarantee in cash with the respondents� department, which will be

subject to the decision of the second appeal and costs, which is quantified as Rs.50,000/-, for condoning the delay in all the three appeals on or before 31-5-2010. All the three petitions stand disposed of accordingly. However, it is made clear that this order has been passed in the peculiar facts and

circumstances of the case and shall not be treated as a precedent in the matter of condonation of delay pertaining to appeals maintainable under the Notification dated 12-11-1999, published by the Government of India, Ministry of Textiles, New Delhi.

Wings Apparels Pvt. Ltd. v. Union of India and 2 Ors.

Case brief

What is this about?

What did the court decide?

Wings Apparels Pvt. Ltd. v. Union of India and 2 Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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