2013 (9) TMI 23 - HC - Central Excise

Condonation of Delay - Held that - In the facts of the case and the explanation offered by the petitioner that the security agency engaged by it did not make available the order-in-Original though received it on 3.5.2012 was unacceptable - The Commissioner(Appeals) was fully justified in rejecting the application to condone the delay and consequently declining to accept the appeal - Commissioner of Customs and Central Excise vs. Hongo India (P) Limited and another 2009 (3) TMI 31 - SUPREME COURT - the legislature intended the Appellate authority to entertain the appeal by condoning the delay upto only thirty days after expiry of sixth days which was the preliminary limitation period for preferring an appeal - in the absence of any Clause to condone the delay by showing sufficient cause, there was complete exclusion of Section 5 of the Limitation Act. The appellate authority was a creature of the Statute vested with jurisdiction to condone the delay but not beyond the period permissible under the Statue - The period upto which the prayer for condonation can be accepted was statutorily provided - The failure to file an appeal within the time stipulated under Section 3 5 of the Act, did not entitle the petitioner to condonation of delay of the period beyond the period prescribed under the Statute - the petitioner should have filed the appeal within sixty days and in terms of the proviso extended by another thirty days - Under Section 35, the Commissioner had no authority or jurisdiction to allow the appeal to be presented beyond the period of thirty days - The legislature having intended the appellate authority to entertain the appeal by condoning the delay only upto thirty days after expiry of sixty days period after preferring the appeal, there was complete exclusion to the application of Section 5 of the Limitation Act Decided in favour of Assessee.

Summary

Issues:
1. Delay in filing an appeal under the Central Excise Act, 1944.
2. Jurisdiction of the Appellate Authority to condone the delay.
3. Interpretation of statutory provisions regarding communication of orders.
4. Application of Section 5 of the Limitation Act in condonation of delay cases.

Analysis:
Issue 1: The petitioner, a company under the Companies Act, received an order-in-Original from the Additional Commissioner of Central Excise, Bangalore, through registered post on 3.5.2012. The petitioner alleged that the security agency did not deliver the letter promptly, leading to a delay in acknowledging the order. The Appellate Authority returned the appeal due to delay, prompting the petitioner to file a petition seeking condonation of the delay.

Issue 2: The Appellate Authority, as per Section 35 of the Central Excise Act, has the power to condone delays but within the statutory period. The Act allows for an initial appeal period of sixty days, extendable by thirty days if sufficient cause is shown. The legislative intent is clear that the appeal must be filed within this timeframe, and the Appellate Authority cannot entertain appeals beyond the extended period.

Issue 3: The petitioner's argument that the order was not effectively communicated due to the security agency's delay was dismissed. The statutory provisions under Section 37(C) of the Act outline specific modes of service, including registered post with acknowledgment due. The court emphasized that the date of communication is crucial, and the petitioner's acknowledgment of receiving the order on 3.5.2012 was deemed as effective communication.

Issue 4: Precedents such as Commissioner of Customs and Central Excise vs. Hongo India and Singh Enterprises vs. Commissioner of Central Excise highlight the limited scope for condonation of delay under the Act. The court rejected the petitioner's reliance on a different case, emphasizing that the circumstances must align with the statutory provisions for condonation.

In conclusion, the High Court upheld the Appellate Authority's decision to reject the application for condonation of delay and deemed the appeal as not maintainable. The court found the petitioner's explanation for the delay inadequate and emphasized the strict adherence to the statutory timelines for filing appeals under the Central Excise Act, 1944.