2007 (7) TMI 214 - SC - Central Excise

Whether an appeal is valid or competent is a question entirely for the appellate court before whom the appeal is filed to decide and this determination is possible only after the appeal is heard but there is nothing to prevent a party from filing an appeal which may ultimately be found to be incompetent e.g., when it is held to be barred by limitation. From the mere fact that such an appeal is held to be unmaintainable on any pound whatsoever, it does not follow that there was no appeal pending before the court. In the instant case the appeal is to be treated as pending. The High Court was not justified in dismissing the writ petition. The impugned order of the High Court is set aside. Orders of the designated authority rejecting the declaration filed by the appellant are quashed. The appeal is allowed with no order as to costs.

Summary

Issues:
Challenge to order passed by Bombay High Court dismissing writ petition.

Analysis:
The appellant, a textile mill, received show-cause notices for recovery of duty. Orders confirmed demands and penalties. Appellant appealed to Commissioner of Central Excise (Appeals) and filed a declaration under "Kar Vivad Samadhan Scheme, 1998" (KVSS). Declaration was rejected, leading to multiple appeals and remands. Tribunal held the appeal was within time. Appellant sought KVSS benefit, but designated authority rejected it. Appellant approached Bombay High Court challenging rejection. High Court held appeal was not pending under KVSS due to time limitation. Appellant argued appeal was within time as per Tribunal's decision. Supreme Court analyzed KVSS provisions and held appeal was pending, citing precedent cases. High Court's dismissal of writ petition was set aside, and orders rejecting appellant's declaration were quashed. Appeal was allowed with no costs.