2015 (1) TMI 79 - HC - Central Excise

Condonation of delay - Held that - Admittedly, the order dated 22.02.2013 passed by the adjudicating authority was communicated to the petitioner shortly thereafter. More than one and half years have, thus, passed since the statutory period of limitation inclusive of the extendable period, had expired for filing appeal. No explanation has been rendered why not appeal was presented within a period of limitation or at least shortly thereafter. Merely stating that the petitioner has a good case on merits and that the authority passed an order, which to the petitioner appears to be irregular, would not permit us to ignore such gross delay when the statute provides for power of condonation to the appellate authority which has been circumscribed by the period beyond which such powers cannot be exercised - Decided against assessee.

Summary

Issues:
Challenge to order confirming service tax demand, Failure to file appeal within statutory period, Jurisdiction of High Court to entertain writ petition despite availability of alternative remedy

Issue 1: Challenge to order confirming service tax demand
The petitioner challenged an order confirming a service tax demand of Rs. 6,39,430/- with interest and penalties, passed by the Additional Commissioner of Central Excise, Customs, and Service Tax. The statutory provision under Section 35 of the Central Excise Act, 1944 allows for an appeal to the Appellate Commissioner within 60 days from the date of communication of the order. The proviso to Sub Section (1) of Section 35 permits the Commissioner to extend this period by a further 30 days on being satisfied of sufficient cause preventing the appellant from filing the appeal within the initial 60-day period. The Commissioner's power to condone the delay and extend the filing period is limited to a maximum of 90 days from the date of communication of the order. The Supreme Court has held in various decisions that the Commissioner cannot extend the limitation period beyond the statutory limit. The petitioner did not file the appeal within the prescribed period, leading to the dismissal of the petition.

Issue 2: Failure to file appeal within statutory period
The petitioner, a cooperative society, contended that the duty itself was under legal dispute, and the imposition of penalties was erroneous. The counsel argued that the High Court has jurisdiction to entertain a writ petition against the order of adjudication despite the availability of an alternative statutory remedy. While it is true that a writ court is not bound by an alternative statutory remedy and can exercise discretion to entertain a writ petition, it is usually done in rare and exceptional cases. The High Court has entertained writ petitions against original orders in situations where the delay was minimal, well-explained, and where non-entertainment of the writ petition would result in gross injustice. However, the Court emphasized that such instances should be rare, and exercising extraordinary powers would be an exception rather than the rule. The Court cited previous judgments to support the limited circumstances under which such writ petitions can be entertained.

Issue 3: Jurisdiction of High Court to entertain writ petition despite availability of alternative remedy
The High Court has the discretion to entertain a writ petition despite the availability of an alternative statutory remedy. In cases where the delay in filing an appeal is well explained and non-consideration of issues would result in gross injustice, the High Court may examine the validity of the original order. However, the Court has imposed self-imposed restrictions on exercising such extraordinary powers, emphasizing that the delay should be well explained, and the non-consideration of issues should lead to gross injustice. In the present case, the Court found that the explanation for the delay in filing the appeal was insufficient. The petitioner's argument that they were under the impression that the appeal was filed on their behalf by a consultant was deemed inadequate to justify the significant delay in filing the appeal. Consequently, the Court dismissed the petition due to the prolonged delay in filing the appeal beyond the statutory limitation period.

By analyzing the judgment, it is evident that the High Court dismissed the petition challenging the service tax demand order due to the petitioner's failure to file an appeal within the statutory period, despite the availability of alternative remedies and the jurisdiction of the High Court to entertain writ petitions in exceptional cases. The Court emphasized the importance of adhering to statutory limitations and providing valid explanations for delays in filing appeals to prevent gross injustice.