2015 (8) TMI 1469 - HC - Central Excise

Condonation of delay in filing appeal - the total time taken for filing of the appeal was 200 days, and as such, the delay in filing of the appeal by the appellant (being the writ petitioner herein) was much beyond the condonation period of 30 days after expiry of normal 60 days - applicability of Section 5 of Limitation Act - Whether the impugned order in appeal passed by the Commissioner of Central Excise (Appeals-II), Kolkata, could be subjected to judicial review under Article 226 of the Constitution of India and interfered with? Held that - This issue is no more res integra in view of several pronouncements of the Hon'ble Supreme Court. In Singh Enterprises Vs. Commissioner of C. EX., Jamshedpur 2007 (12) TMI 11 - SUPREME COURT OF INDIA , where it was held that The proviso to sub-section (1) of Section 35 makes the position crystal clear that the appellate authority has no power to allow the appeal to be presented beyond the period of 30 days. Section 5 of the Limitation Act cannot be applied where specific power has been conferred upon a particular authority under a statute to condone delay. Section 35 of the Central Excise Act, 1944, being time specific in nature and taking into consideration the admitted fact that the appellant (being the writ petitioner herein) presented the appeal beyond the outer time limit as provided under the said section, the impugned order passed by the Commissioner of Central Excise (Appeals-II), Kolkata, does not warrant any interference under Article 226 of the Constitution of India. Petition dismissed.

Summary

Issues Involved:
Judicial review of order passed by appellate authority under Central Excise Act, 1944 - Condonation of delay in filing appeal beyond statutory period - Application of Section 5 of Indian Limitation Act - High Court's jurisdiction to entertain reference application after prescribed period.

Analysis:

The primary issue in the instant writ petition was whether the order passed by the Commissioner of Central Excise (Appeals-II), Kolkata, could be subjected to judicial review under Article 226 of the Constitution of India and interfered with. The appellate authority had observed that the delay in filing the appeal was beyond the condonation period of 30 days after the normal 60-day period, as stipulated under Section 35 of the Central Excise Act, 1944.

The Supreme Court's pronouncements in previous cases were crucial in determining the legal position regarding the condonation of delay beyond the statutory period. The Court emphasized that the appellate authority has no power to allow the appeal to be presented beyond the period of 30 days after the expiry of the normal 60-day period, as specified in the proviso to sub-section (1) of Section 35. This exclusion of Section 5 of the Limitation Act was highlighted to establish the limitations on condonation of delay under the Central Excise Act.

Furthermore, the judgment referred to the High Court's jurisdiction in entertaining reference applications beyond the prescribed period of 180 days. It was clarified that the legislature intended the appellate authority to entertain appeals by condoning the delay only up to 30 days after the expiry of the initial 60-day period, with complete exclusion of Section 5 of the Limitation Act. The High Court's power to condone delay exceeding the statutory period was restricted by the specific provisions of the Central Excise Act.

In light of the specific time limits set forth in Section 35 of the Central Excise Act and the absence of provisions for condoning delays beyond the prescribed periods, the Court concluded that the impugned order did not warrant interference under Article 226 of the Constitution of India. The judgment highlighted that where a statute confers a particular authority with the power to condone delay, Section 5 of the Limitation Act cannot be invoked.

Ultimately, the writ petition was dismissed, emphasizing the importance of adhering to the time-specific provisions of the Central Excise Act and the limitations on the High Court's jurisdiction to condone delays beyond the statutory periods. The judgment underscored the significance of statutory timelines and the lack of authority for the High Court to grant relief by condoning delays exceeding the prescribed limits.