Per Shri P.C. Jain :

The subject Miscellaneous Application seeking condonation of delay states that the impugned order was communicated on 16.11.1996. The appeal, therefore, should have been filed by 16.2.97. But it has been filed on 7.7.97. There is, thus, a delay of four months and 21 days. Reason for seeking the condonation of the aforesaid delay is in the first instance, that the applicants/appellants herein filed a Stay Petition against the final direction of the Commissioner (Appeals) in the impugned order that the amount already refunded to the appellants is required to be paid back by the appellants before the issue is taken up by the Assistant Commissioner for fresh adjudication. The Stay Petition was filed on 27.1.97 i.e. within the limitation period of filing the appeal after communication of the impugned order. Learned Advocate, Shri G.B. Chattar submits that this was entirely his mistake to follow a wrong procedure in as much as they were not aggrieved by the impugned order as such remanding the matter to the Assistant Commissioner for deciding afresh the question of refundable amount. They were only aggrieved against the aforesaid direction of the Commissioner (Appeals) regarding the recovery of the refunded amount to the applicants/appellants by the Assistant Commissioner before taking up the question of refundability of the amount. He has submitted that the Counsel's misunderstanding of law should not be taken in such a manner so that the applicants/appellants' interests will be made to suffer. In these circumstances, he prays for condoning the delay and admitting the appeal.

2. We have also heard the learned J.D.R. We have carefully considered the submissions of both sides. In view of the facts as stated above, and clear admission admitted in the Application as also across the Bar regarding misunderstanding of law by the learned Advocate, we accept his prayer for condoning the delay. Therefore, we allow the Miscellaneous Application.

3. We have also considered the question raised in the appeal i.e. deleting the direction of the Commissioner (Appeals) to recover from the appellants herein the amount already paid to them, before starting the de novo proceedings by the Assistant Commissioner.

4. We are of the view that since the amount has already been paid to the appellants, this amount can only be recovered in accordance with law. We, therefore, do not find any justification in giving of this direction to the Assistant Commissioner before starting the de novo proceedings by the Assistant Commissioner. We, therefore, delete this direction and direct the Assistant Commissioner to proceed, during de novo examination, with the question of refundability to the applicants/appellants. If the refund is due to them, then the matter ends there and if the refund is not due to them then the proceedings may be taken according to law. With this direction, the appeal is also disposed of. The Stay Petition also gets disposed of.