2017 (4) TMI 1354 - HC - Central Excise

Condonation of delay of 104 days in filing appeal - Section 35 of the CEA 1944 - Extraordinary jurisdiction under Article 226 of the Constitution of India - time limitation - Held that - If the alternate remedy is barred by virtue of limitation and is not available to the petitioner, the challenge which is liable to be raised before alternate forum shall not be examined in exercise of extraordinary under Article 226 of the Constitution - The submission made on behalf of the petitioner for examining the correctness of the orders is not liable to be accepted - petition dismissed - decided against petitioner.

Summary

Issues:
Quashment of orders dated 30.07.2014 and 31.12.2013 passed by the Commissioner (Appeals), Central Excise and Customs Aurangabad.

Analysis:
The petitioner, a company engaged in manufacturing excisable goods, appealed to the Commissioner (Appeals) challenging demands made by the Additional Commissioner of Central Excise. The appeal was dismissed on the ground of being filed beyond the condonable period of 60 days as prescribed by the Central Excise Act. The petitioner sought to invoke the extraordinary jurisdiction under Article 226 of the Constitution of India to condone the delay and entertain the appeal. However, the court referred to precedents like Singh Enterprises Vs. Commissioner of Central Excise and Commissioner of Customs and Central Excise Vs. Hongo India (P) Ltd., emphasizing the limitation on condoning delays beyond the prescribed period.

The petitioner argued for the court to consider the judgment in Patel Brother Vs. State of Assam, which excluded the operation of section 5 of the Limitation Act in certain cases. However, the court held that the legislative intent was to exclude the operation of section 5 of the Limitation Act, and delay beyond the prescribed period could not be condoned. Ultimately, the court upheld the decision of the Commissioner (Appeals) and dismissed the writ petition, stating that if an alternate remedy is barred by limitation, the challenge must be raised before the appropriate forum and not through Article 226 of the Constitution.

In conclusion, the court found that the decision of the Commissioner (Appeals) could not be faulted, and the petitioner's plea to examine the correctness of the orders through Article 226 was rejected. The writ petition was deemed devoid of substance and dismissed accordingly.