Cost of Rs. 10 lakhs imposed for abuse of process by giving false undertaking to conceal material facts.
- It was stated in the condonation of delay application that the Appellant resigned from M/s Sant Steel Alloy Pvt. Ltd. and his resignation was accepted on 11.12.2014 by the board or directors of the Company. The Appellant has nothing to do with the affairs of the company thereafter.
- That on recovery proceedings initiated from the department the Appellant requested for the copy of the order dated 30.06.2017 vide its letter dated 21.02.2019 and was provided the certified copy of the same on 21.02.2019. Accordingly, an appeal was filed under Section 35 B within the period of limitation on 07.03.2019.
- It was prayed in that Condonation of delay application be allowed as there is no delay in filing the appeal under Section 35B, otherwise the appellant shall suffer irreparable loss and injury, which cannot be compensated by any means.
- The prayer clause and the verification clause were duly signed by the appellant ‘Tasleem Ahmed’ confirming the averments made in the Condonation of delay Application. Also a statement was made in EA-III that the order appealed against was received on02.2019. Further the undertaking to the effect that no appeal, writ or suit is pending against the said order was furnished and duly signed by the Appellant as well as the Vakalatnama was also executed in the favour of Mr. Pulak Raj Mullick and Mr. Sahil Mullick.
- That the Hon’ble CESTAT after considering the facts and circumstances involved in the case observed that it is quite evident that the appellant had stated in the EA-III and also in the condonation application that the copy of order dated 30th June 2017 was received on 21.02.2019.
- That however on 27th January 2022, the authorized representative appearing on behalf of the Department informed that against the same impugned order dated 30th June 2017, the appellant had earlier filed a Central Excise Appeal No. 50087 of 2018 on October 10 2017, which was dismissed by the Hon’ble Tribunal on January 11, 2018 for not depositing the statutory amount for filing the appeal.
- That the Hon’ble Bench after considering the facts vide its order dated January 27, 2022, directed the appellant to file an Affidavit explaining why second appeal has been filed against the same order, however no one appeared on the next date of hearing i.e. March 30, 2022 and an adjournment was sought. The Hon’ble Bench very reluctantly adjourned the matter to April 11, 2022.
- It was further observed by the Hon’ble Bench that it is quite evident from the records placed by the office of Excise Appeal No. 50087 of 2018 that same counsel Sh. P.R. Mullick appeared for appellant on January 11, 2018 and submitted that due to paucity of funds, the appellant was not able to make the pre-deposit. Therefore, the appeal was dismissed.
- Further in the said appeal papers, it shows that the same order i.e. dated 30.06.2017 was received by the appellant on July 8, 2017 and the appeal was filed by ‘Tasleem Ahmed’ only claiming himself to be the erstwhile director of M/s Sant Steel Alloy Pvt. Ltd.
- That in the present matter the condonation of delay application has been filed by the Appellant praying to condone the delay as the impugned order came to the knowledge of the appellant only after recovery proceedings were initiated, and thereafter the appellant filed a letter with the department to obtain the copy of the order and received the same on 21.02.2019. Further the verification has been signed by ‘Tasleem Ahmed’ which states that ‘the averments made in the delay condonation application are true and correct to the best of information and belief of the applicant and nothing has been concealed’.
- It is clear from the above that ‘Tasleem Ahemd’ not only filed both the appeals, but in the present appeal there is no mention of earlier appeal filed and its subsequent disposal, rather a false undertaking has been given by ‘Tasleem Ahmed’ that no appeal has been filed against the impugned order earlier.
- The Hon’ble Bench with the above observations held that the appellant has clearly abused the process by stating that he received the copy of impugned order date 30.06.2017 on 21.02.2019, despite the fact that an appeal was earlier filed and disposed against the same order. That such wrong averments have been made deliberately to make out a case of condoning the delay in filing the appeal.
- Further the appellant vide order date January 27, 2022 was granted time to file an affidavit to explain why a second appeal has been filed against the same order, however no affidavit has been filed by the appellant to that effect on the last date of hearing and not even today. Moreover no one has appeared today on behalf of the appellant.
Lastly the Hon’ble Bench while concluding the matter held that such an abuse of process cannot be overlooked and has to be seriously viewed as the appellant has not only concealed the material facts but also stated false facts before the Tribunal. Thus, finding it a fit case for imposing cost, imposed a cost of Rs. 10 lakhs to be deposited to PM Cares Fund by the appellant within a period of six weeks from the date of order.