2015 (7) TMI 303 - HC - Central Excise

Condonation of delay - delay in filing an appeal before Commissioner (Appeals) - Whether the period of limitation provided of 60 days, for filing an appeal under Section 35 of the Central Excise Act, 1944, could be extended only upto 30 days as provided by the proviso or the delay beyond the period of 90 days could also be condoned in filing an appeal - Jurisdiction of High Court - Held that - No legislation including section 35 of the Act can whittle down or dilute or nullify the power of the constitutional court under Article 226 of the Constitution but the parameter for exercise of the writ of certiorari would be in a case where the Tribunal or the authority has acted without jurisdiction or in excess of jurisdiction or acted in flagrant disregard of the law or the rules of procedure or have acted in violation to the principles of natural justice and thereby, resulting into failure of justice. The certiorari jurisdiction may be exercised when the error if not corrected at the very moment may become incapable of correction at the later stage and refusal to intervene would result travesty of justice. But the jurisdiction of writ of certiorari should not be converted into the court of appeal or indulge into reappreciation of the evidence or evaluation of the evidence or correction of the errors were two views are possible. It is not possible to observe that in a case where the limitation period of preferring appeal or further period of condonation of delay is over, the High Court will have no jurisdiction under Article 226 of the Constitution but the exercise of such power has to be in exceptional cases where gross injustice is satisfactorily demonstrated. Otherwise, in normal circumstances, the High Court would give appropriate weightage to the statutory provisions because the things which cannot be done directly as per the statute can not be permitted to be done indirectly in writ jurisdiction unless a grave and strong case is made out before the High Court that noninterference to the order under challenge would result into a gross injustice to the party suffering the order. - limitation provided under section 35 of the Act cannot be condoned in filing the appeal beyond the period of 30 days as provided by the proviso nor the appeal can be filed beyond the period of 90 days. - petition under Article 226 of the Constitution would not lie for the purpose of condonation of delay in filing the appeal. - Appeal disposed of.

Issues Involved:
1. Extension of limitation period for filing an appeal under Section 35 of the Central Excise Act, 1944.
2. Condonation of delay beyond 90 days through a Writ Petition under Article 226 of the Constitution of India.
3. Challenging the order of the original adjudicating authority on merits via a Writ Petition under Article 226 of the Constitution of India when the statutory remedy is barred by the law of limitation.

Detailed Analysis:

Issue 1: Extension of Limitation Period for Filing an Appeal under Section 35 of the Central Excise Act, 1944
The court examined whether the limitation period of 60 days for filing an appeal under Section 35 of the Central Excise Act, 1944, could be extended beyond the additional 30 days provided by the proviso. The court concluded that the limitation period cannot be extended beyond 90 days. The statutory provision under Section 35 of the Act prescribes a 60-day period for filing an appeal, with a further discretionary 30-day extension for condonation of delay. The court emphasized that the Commissioner (Appeals) does not possess the power to condone delays beyond this 90-day period. This interpretation aligns with the statutory framework and the legislative intent behind the provision.

Issue 2: Condonation of Delay Beyond 90 Days through a Writ Petition under Article 226 of the Constitution of India
The court addressed whether a Writ Petition under Article 226 of the Constitution of India could be used to condone delays in filing an appeal beyond the statutory 90-day period. The court held that a Writ Petition cannot be used for the sole purpose of condoning delay in filing an appeal. However, it acknowledged that in exceptional cases where gross injustice is demonstrated, the High Court retains the discretionary power under Article 226 to intervene. This power is not affected by the statutory provision of Section 35 of the Act. The court reiterated that the exercise of this power should be reserved for extraordinary circumstances where the failure to intervene would result in gross injustice.

Issue 3: Challenging the Order of the Original Adjudicating Authority on Merits via a Writ Petition under Article 226 of the Constitution of India
The court explored whether a Writ Petition under Article 226 could be used to challenge the original adjudicating authority's order on merits when the statutory remedy is barred by the law of limitation. The court affirmed that such a petition can be entertained under specific circumstances:
- When the authority has acted without jurisdiction or in excess of its jurisdiction.
- When the authority has acted in flagrant disregard of the law, rules, or principles of natural justice.
- When there is a failure of justice or gross injustice resulting from the authority's actions.

The court emphasized that while the power to issue a writ of certiorari exists, its exercise is discretionary and should be governed by judicial conscience, experience, and practical wisdom. The court also clarified that the High Court should not convert itself into a court of appeal to reappreciate or evaluate evidence but should intervene only in cases of manifest and apparent errors resulting in grave injustice.

Conclusion:
The court provided a comprehensive analysis of the issues, concluding that:
1. The limitation period for filing an appeal under Section 35 of the Central Excise Act, 1944, cannot be extended beyond 90 days.
2. A Writ Petition under Article 226 cannot be used merely to condone delay in filing an appeal but can be invoked in exceptional cases of gross injustice.
3. A Writ Petition under Article 226 can challenge the original adjudicating authority's order on merits under specific circumstances of jurisdictional errors or violations of natural justice principles.

The matters were directed to be placed before the appropriate Bench for further consideration in accordance with the law.

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