2014 (11) TMI 918 - HC - Central Excise

Condonation of delay - Section 5 of the Indian Limitation Act, 1963 - Inordinate Delay of 5 years and 113 days - financial status of the company was not good - Held that - On due consideration and in view of the law laid down Commissioner of Central Excise (2009 (3) TMI 31 - SUPREME COURT) the provision of Indian limitation Act, 1963 will not be applicable and as per Section 35G(2) (a) of Central Excise Act, 1944 the appeal was filed after the period prescribed therein and, thus, the same is liable to be dismissed as barred by time - Condonation denied.

Summary

Issues involved: Application for condonation of delay under Section 5 of the Indian Limitation Act, 1963 in a Central Excise Appeal challenging orders dated 28/09/2006 and 29/06/2007.

Analysis:
1. The appellant sought condonation of delay of 5 years and 113 days in filing the Central Excise Appeal, citing financial difficulties, operational challenges, and legal proceedings before B.I.F.R. The appellant argued that the delay was bona fide and not motivated by malice, emphasizing the need for substantial justice and the Court's power to condone delays under Section 5 of the Indian Limitation Act, 1963.

2. The appellant's Senior Counsel highlighted the company's struggles, including heavy losses, management changes directed by BIFR, and efforts to restart operations for the benefit of employees and the community. The appellant also referred to relevant legal precedents, such as Maniben Devraj Shah Vs. Municipal Corporation of Brihan, Mumbai and B. Madhuri Goud vs. B. Damodar Reddy, to support the request for condonation of the significant delay.

3. In response, the respondent's counsel argued against the applicability of Section 5 of the Indian Limitation Act, 1963, contending that the amended provision of Section 35-G(2)(A) of the Central Excise Act, 1944 only allows for condonation within the specified period. Citing the decision in Commissioner of Central Excise vs. Hongo India Private Limited & Another, it was asserted that delays beyond 180 days cannot be condoned under the Central Excise Act.

4. The Court considered the special nature of the Central Excise Act, 1944 and the precedent set by the Apex Court regarding the limitation of time for filing appeals and references. Relying on the judgment in Commissioner of Central Excise, it was concluded that the provisions of the Indian Limitation Act, 1963 were not applicable in this case. As the appeal was filed after the prescribed period under Section 35-G(2)(A) of the Central Excise Act, the Court dismissed the application for condonation of delay and consequently the Central Excise Appeal as time-barred.