2013 (8) TMI 226 - HC - Central Excise

Condonation of delay in filing appeal before Commissioner(A) - Adjudicating authority which sanctioned the refund amount on the first show-cause notice, issued a fresh show cause notice on the ground that the refund was erroneously granted - After awarding the opportunity of hearing, it confirmed the recovery of refund amount of Rs. 4 lakhs vide its impugned order dated 23.2.2009 - The petitioner herein challenged the same before the Commissioner(Appeals) raising various grounds in such challenge. Such appeal was preferred on 3.8.2009 i.e. five months after the order impugned was passed - Commissioner(Appeals) rejected the condonation of delay application and held that it does not enjoy the powers to condone delay beyond a period of 30 days Subsequenty, Tribunal confirmed the order of Commissioner(A) and rejected the condonation of delay application Held that - There is no quarrel that the power of Commissioner(Appeals) to condone the delay is of three months maximum. And, therefore, no fault can be found with the approach of both the authorities as far as question of condonation of delay is concerned. None of these authorities has decided the question on merit after the second round of litigation began As per decision of D.R. Industries Ltd. v. Union of India 2008 (3) TMI 213 - HIGH COURT GUJARAT held that this Court has extraordinary powers in appropriate case to interfere even while upholding the contention that there is statutory limitation to which delay can be condoned by the authorities. In Senior Superintendent of Post Office v. Union of India 2012 (6) TMI 271 - GUJARAT HIGH COURT , this court recognised that if an aggrieved person knocks the door of High Court seeking redressal under writ jurisdiction for valid reasons, to obviate extraordinary hardship and injustice such challenge can be entertained even beyond the period of limitation Refund allowed Decided in favor of Assessee.

Summary

Issues:
Challenge to the order of adjudicating authority based on limitation for condonation of delay.

Analysis:
The petitioner filed a petition under Article 226 seeking various reliefs, including quashing an impugned order related to the refund claim of Rs. 4 lakhs. The refund was initially granted by the Assistant Commissioner but later challenged by the Revenue department. The Commissioner(Appeals) and the Tribunal rejected the petitioner's appeal based on the issue of limitation for condonation of delay. The petitioner argued that despite having strong merits, the authorities did not entertain the plea due to the technical ground of limitation. The petitioner cited relevant case laws to support the argument that in extraordinary cases, the High Court can intervene even when there are statutory limits for condonation of delay. The respondent contended that there was no error in the concurrent views of the authorities and relied on the doctrine of merger to support their decision.

The Court noted that both the Commissioner(Appeals) and the Tribunal did not decide the case on its merits after the second round of litigation began. The Court acknowledged the statutory limit of three months for condonation of delay by the Commissioner(Appeals) and concluded that there was no fault in the approach taken by the authorities regarding the issue of delay. However, considering the extraordinary circumstances of the case, the Court decided to invoke its extraordinary jurisdiction. The Court found that the petitioner had a strong case on merit, and the delay in filing the appeal was minimal with acceptable grounds for condonation. As a result, the Court quashed and set aside the impugned order dated 23.2.2009, emphasizing the need to prevent gross injustice to the petitioner.

In the final decision, the Court allowed the petition without claiming any interest on the refund amount. The Court confirmed the rule in favor of the petitioner, highlighting the importance of sparingly exercising extraordinary powers in cases of exceptional circumstances to prevent injustice.