2015 (2) TMI 138 - HC - Central Excise

Condonation of delay - Power of Court - Power of Judicial review - whether the appellate authority under the Central Excise Act, 1944 is empowered to condone the delay beyond the maximum period provided in the statute - Held that - Court has recognised some exceptions to the rule of alternative remedy i.e. where the statutory authority has not acted in accordance with the provisions of the enactment in question, or in defiance of the fundamental principles of judicial procedure, or has resorted to invoke the provisions which are repealed, or when an order has been passed in total violation of the principles of natural justice, the proposition laid down in Thansingh Nathmal case, Titaghur Paper Mills case and other similar judgments that the High Court will not entertain a petition under Article 226 of the Constitution if an effective alternative remedy is available to the aggrieved person or the statute under which the action complained of has been taken itself contains a mechanism for redressal of grievance still holds the field. Therefore, when a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation. Act provides complete machinery for the assessment/reassessment of tax, imposition of penalty and for obtaining relief in respect of any improper orders passed by the Revenue Authorities, and the assessee could not be permitted to abandon that machinery and to invoke the jurisdiction of the High Court under Article 226 of the Constitution when he had adequate remedy open to him by an appeal to the Commissioner of Income Tax (Appeals). The remedy under the statute, however, must be effective and not a mere formality with no substantial relief. Power of judicial review is a rule of discretion than of compulsion. Any attempt to undermine the power of judicial review enshrined under Article 226 of the Constitution would offend the basic structure of the Constitution. High Court, therefore, in an exceptional cases can interfere with the order of the authority provided an extraordinary circumstances warrants it. The judgment rendered in case of Singh Enterprises (2007 (12) TMI 11 - SUPREME COURT OF INDIA) and Hongo India Private Limited (2009 (3) TMI 31 - SUPREME COURT ) does not lay down the proposition of law that under any conceivable circumstances, the remedy under Article 226 of the Constitution is not available. It is one thing to say that the Court cannot condone the delay beyond the maximum limit provided under the statute but it would be different when a challenge is made to an order where the statutory authority acted in defiance of the fundamental principles of judicial procedure or passed an order to a total violation of principles of natural justice. - if an extraordinary case is made out, even if, a remedy by way of a statutory appeal is available, the Court can exercise the power of judicial review under Article 226 of the Constitution. The power of the High Court under Article 226 of the Constitution is not excluded merely because the alternative efficacious remedy is provided in the statute. It is a self-imposed restrictions and depends upon the facts of the each case and, therefore, is more a rule of discretion than of compulsion. The power of judicial review can be exercised where remedy available under the statute is not effective but mere formality with no substantial relief, where the statutory authority have acted in violation of the statutory provision or not acted in accordance therewith where the decision of the statutory authority is incomplete defiance of the fundamental principles of judicial procedure or the statutory authority have passed an order in gross violation of principles of natural justice or a fundamental rights guaranteed under the Constitution is infringed by the statutory authority. The power under Article 226 of the Constitution can be exercised when the statutory remedy is not available because of the interdiction of the limitation prescribed in the statute in an extraordinary circumstances when an extraordinary case is made out. - The doctrine of merger would be attracted in a case when an appeal is dismissed for default or an application for condonation of delay is rejected but not when the appeal is allowed to be withdrawn. CESTAT found that the order of the Commissioner (Appeals) cannot be faulted with as the statute provides a maximum limit to condone the delay. The Tribunal dismissed the said appeal and the order of the tribunal is challenged in this writ petition. the petitioner prayed for setting aside the order of the tribunal with further prayer to condone the delay and transmit the matter to the Appellate Authority for consideration on merit. Section 35 of the Act puts a restriction on the Commissioner (Appeals) to condone the delay beyond certain limits and, therefore, there is no illegality in the order of the Commissioner (Appeals) in rejecting the appeal on such ground. Equally this Court cannot find fault in the order of the tribunal in dismissing the appeal and affirming the order of the Appellate Authority. This Court, therefore, does not find that there is any uniformity and/or illegality in the order of the tribunal in rejecting the appeal because of the restrictions provided under Section 35 of the Act. In view of the ratio laid down in Shyam Sundar Sarma (2004 (11) TMI 523 - SUPREME COURT OF INDIA), the order of the sub-ordinate authority must be the order of the higher authority upon rejection of an application seeking condonation of delay. It is, therefore, the order of the Appellate Authority which is an existence as two orders cannot operate in the field. The Appellate Authority have rejected the application for condonation of delay which resulted into the dismissal of an appeal itself. There is no ambiguity in the order of the Appellate Authority in dismissing the appeal having timebarred, as the statute does not provide the power to condone delay beyond certain limits. This Court, therefore, does not find any fault in the order of the Appellate Authority as the order-in-original has merged into it. - Decided against appellants.

Summary

Issues Involved:
1. Whether the appellate authority under the Central Excise Act, 1944 is empowered to condone the delay beyond the maximum period provided in the statute.
2. Whether a writ petition is maintainable challenging an order-in-original which merged with the order of the appellate authority upon rejection of an application for condonation of delay.

Detailed Analysis:

Issue 1: Authority to Condon Delay Beyond Statutory Period
The primary issue revolves around the interpretation of Section 35 of the Central Excise Act, 1944, which stipulates that an appeal to the Commissioner of Central Excise (Appeals) must be filed within 60 days from the date of communication of the order. The proviso to this section allows the Commissioner to condone a delay of up to an additional 30 days, making the maximum allowable period for filing an appeal 90 days. In both writ petitions, the appeals were filed beyond this 90-day period, and the appellate authority dismissed the appeals as time-barred, without deciding on the merits.

The petitioners argued that the High Court's power under Article 226 of the Constitution is not restricted by the statutory limitation period and that meritorious matters should not be dismissed solely on technical grounds such as limitation. They cited various judgments to support the sovereignty of judicial review by the High Court, suggesting that in exceptional cases, the High Court could condone the delay.

The respondents contended that once the statute sets a maximum limit for condoning delays, the statutory authority cannot exceed this limit. They argued that the Act provides for further appeal before the High Court, which can exercise constitutional powers in appropriate cases.

The Court reviewed several precedents, including the Supreme Court's judgment in Singh Enterprises v. Commissioner of Central Excise, Jamshedpur, which held that if the statute provides a specific limitation period and the power to condone delay is circumscribed by a maximum period, even the High Court should not direct condonation beyond this period. The Gujarat High Court in D.R. Industries Limited v. Union of India held that in extraordinary cases, the High Court could condone delays beyond the statutory period, but not routinely. However, the Bombay High Court in Commissioner of Central Excise, Pune-II v. Shruti Colorants Limited took a dissenting view, emphasizing that the Limitation Act does not apply to extend the statutory period set by the Central Excise Act.

The Supreme Court in Commissioner of Customs & Central Excise v. Hongo India Private Limited reiterated that the Central Excise Act is a complete code in itself, and the statutory time limit for filing appeals is unextendable by the courts.

Issue 2: Maintainability of Writ Petition Post-Appeal Rejection
The second issue concerns whether a writ petition is maintainable after the appellate authority has rejected an appeal for being time-barred. The petitioners argued that since the appellate authority did not decide on the merits but dismissed the appeal on technical grounds, the original order did not merge with the appellate order. They cited the Supreme Court's decision in Shyam Sundar Sarma v. Pannalal Jaiswal & Ors., which clarified that the dismissal of an appeal for default or rejection of an application for condonation of delay does not amount to a decision on the merits, and thus, the doctrine of merger does not apply.

The Court observed that the power of judicial review under Article 226 of the Constitution is not excluded merely because an alternative remedy is provided in the statute. This power is discretionary and can be exercised in exceptional cases where the statutory remedy is inadequate or where the statutory authority has acted in violation of fundamental principles of judicial procedure or natural justice.

Judgment:
In WP 10412 (W) of 2014, the Court dismissed the writ petition, upholding the orders of the Commissioner (Appeals) and the CESTAT, as they were in accordance with the statutory limitation period prescribed by Section 35 of the Central Excise Act.

In WP 6802 (W) of 2014, the Court also dismissed the writ petition, holding that the order-in-original had merged with the appellate order upon the rejection of the application for condonation of delay. The Court found no fault with the appellate authority's decision, as it was bound by the statutory limitation.

Conclusion:
The High Court affirmed that the appellate authority under the Central Excise Act cannot condone delays beyond the statutory period of 90 days. The Court also held that while the power of judicial review under Article 226 is broad, it should be exercised sparingly and in exceptional cases. The writ petitions were dismissed, with no order as to costs.