2014 (3) TMI 714 - HC - Central Excise

Condonation of delay for filing an appeal before Commissioner (Appeals) - Denial of rebate claim - Bar of limitation - though the petitioner has challenged the appellate Commissioner s order rejecting the appeal of the petitioner on the ground of delay, a separate prayer has also been made challenging the very order of adjudication passed by the Deputy Commissioner. - Held that - we cannot view the limitation imposed under the statute leniently so as to bring through the backdoor the concept of sufficient cause flowing from section 5 of the Limitation Act. Even otherwise, the delay remains largely unexplained. The statute provided for a limitation of 60 days with a maximum possible extension of further 30 days. The statutory scheme thus recognizes that the right to appeal beyond the said period would be lost without any possibility of extension. Had there been some extraordinary circumstances preventing the petitioner from presenting the appeal within such time coupled with the gross injustice on account of termination of appellate remedy, we would have still considered the case of the petitioner for invoking the extra ordinary writ jurisdiction. In the present case, however, we find that the explanation for delay itself is insufficient. Counsel for the petitioner stated that the consultant was instructed to file appeals on behalf of both the entities and only due to oversight, he preferred one appeal. - Such general statement would not explain such inordinate delay. Particularly when the statute puts a lid on the number of days of delay that the Commissioner can condone beyond which the appeal simply cannot be entertained, it would not be possible to ignore such a long delay on mere explanation that under a bonafide impression that the consultant would have filed appeal or that the appeal of Gujarat Polyfilms would cover the case of the petitioner as well - Decided against assessee.

Issues Involved:
1. Quashing and setting aside the Order-in-Original (OIO) and Order-in-Appeal (OIA).
2. Direction to pay rebate claims with interest.
3. Condonation of delay in filing the appeal.

Detailed Analysis:

1. Quashing and Setting Aside OIO and OIA:
The petitioner company sought the quashing and setting aside of OIO No.SRT-V/ADJ-139-148/2011-R dated 28.6.2011 and OIA No.CCE-SRT-I/SSP-165-174/U/S/35AOrder (Delay Condonation) dated 29.11.2012. The OIO rejected the rebate claim on the ground that M/s. Gujarat Polyfilms had sent unprocessed fabrics for dyeing and printing before receiving the necessary permission, making the cenvat credit inadmissible. The OIA upheld this decision, rejecting the petitioner's appeal as time-barred. The petitioner argued that the delay in filing the appeal was due to a bona fide error by the consultant, who failed to file separate appeals for the petitioner and M/s. Gujarat Polyfilms.

2. Direction to Pay Rebate Claims with Interest:
The petitioner requested a writ directing the respondents to sanction and pay the rebate claims aggregating to Rs. 8,07,312/- with interest under Section 11BB of the Central Excise Act, 1944. The petitioner, a government-recognized export house, had followed the necessary procedures for exporting processed fabrics and lodged rebate claims upon receiving proof of export. However, the rebate claims were rejected by the Revenue authorities, leading to the present petition.

3. Condonation of Delay in Filing the Appeal:
The petitioner sought condonation of the delay in filing the appeal, arguing that the delay was due to a genuine and bona fide error. The statute provides a limitation of 60 days for filing an appeal before the Commissioner, with a further 30 days' extension if sufficient cause is shown. The petitioner's appeal was filed well beyond this period. The petitioner contended that the delay should be condoned due to the consultant's oversight and the common cause shared with M/s. Gujarat Polyfilms.

Court's Reasoning and Judgment:
The court noted that the statute imposes a strict limitation period for filing appeals, with no provision for condoning delays beyond the specified period. The Supreme Court, in Commissioner of Customs & Central Excise v. Hongo India (P) Ltd., held that the High Court has no power to condone delays beyond the maximum extendable period under the Excise Act. The court acknowledged that in extraordinary circumstances, it might examine the validity of the order-in-original even if the appeal is time-barred. However, such instances must be rare and justified by well-explained delays and gross injustice.

In this case, the court found the explanation for the delay insufficient. The petitioner's general statements about the consultant's oversight and the common cause with M/s. Gujarat Polyfilms did not justify the inordinate delay. The court emphasized that the statutory scheme recognizes the loss of the right to appeal beyond the specified period without any possibility of extension. The court also noted that the appeal filed by M/s. Gujarat Polyfilms did not indicate any intention to cover the petitioner's case.

Given the insufficient explanation for the delay and the statutory limitations, the court dismissed the petition, discharging the rule and refusing to grant the petitioner's prayers.

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