2015 (4) TMI 422 - HC - Central Excise

Demand u/s 11A - Condonation of delay - Section 35(1) - Held that - Petitioner keeping eyes open allowed the period for preferring the appeal as well as that of for condonation of delay allowed to expire and thereafter he approached. In other words, the petitioner had fitter away its own remedy. Therefore alleged situation of remediless is its own creation. According to us, the provision of Section 35(1) of the Act is absolutely rigid and cannot be extended either directly or indirectly by the Court of law. - It is specific mandate that even Section 5 of the Limitation Act, 1963 by virtue of Section 29(2) thereof, will not be applicable beyond 90 days. We are further of the view that once this period is allowed to expire intentionally or unintentionally, then remedy is absolutely barred and no Court of law can entertain the matter. However, the petitioner availed alternative remedy unsuccessfully, so we are not considering this aspect in great detail. - Decided against assessee.

Summary

Issues:
Challenge to order of Additional Commissioner of Customs, Central Excise and Service Tax; Condonation of delay in filing appeal; Alternative remedy of writ petition; Interpretation of Section 35(1) of the Central Excise Act, 1944.

Analysis:

1. The writ petition was filed to challenge the order passed by the Additional Commissioner of Customs, Central Excise and Service Tax. The petitioner approached appellate authorities for condonation of delay in filing the appeal, but the application was dismissed due to being presented beyond the condonable period under Section 35(1) of the Act. The appellate authority and the Tribunal both dismissed the appeal as time-barred. The writ petition did not challenge these orders, leading to the petitioner exhausting all remedies before filing the writ petition.

2. The petitioner argued that since the appeal could not be filed within the condonable period, there was no effective remedy available. Citing a Supreme Court decision, the petitioner contended that lack of remedy allows for the writ petition. However, the court found this argument not applicable as the petitioner had already approached all authorities without success and had not challenged their decisions in the writ petition.

3. The court rejected the argument that resorting to alternative remedies knowingly being fruitless does not bar the writ petition. It emphasized that the petitioner had allowed the appeal period and condonation period to expire before approaching the court, creating a situation of being remediless. The court highlighted the rigidity of Section 35(1) of the Act, which does not allow for extension of time limits, even with the provisions of the Limitation Act, 1963.

4. The court concluded that once the specified time period for filing an appeal under Section 35(1) had lapsed, intentionally or unintentionally, the remedy is barred, and no court can entertain the matter. Despite the petitioner availing alternative remedies unsuccessfully, the court dismissed the writ petition, stating that the petitioner had forfeited their own remedy by not acting within the prescribed time limits.

5. In the final judgment, the court dismissed the writ petition and any pending miscellaneous petitions, with no order as to costs, based on the interpretation and application of Section 35(1) of the Central Excise Act, 1944, and the petitioner's failure to act within the statutory time limits despite having exhausted alternative remedies unsuccessfully.