2016 (4) TMI 791 - HC - Central Excise

Condonation of delay of 65 days - belated beyond the maximum condonable period - Commissioner rejected the appeal on the ground that he had no power to condone such delay - Petitioner submitted that they had offered a sound explanation for delay preventing the petitioner from filing appeal within the extendable period of limitation - Held that - explanation is general and lacks the requirement of being otherwise well explained. We may recall the period of limitation statutorily prescribed is 60 days for filing the appeal. The Commissioner has discretion to accept appeal filed beyond such period as long as the period is not beyond 30 days. The petitioner did not prefer appeal within this extendable period of 90 days, but consumed further 35 days in filing the appeal. The petitioner s explanation must be viewed in the background of the legislative intent of not permitting appeals which are delayed beyond 30 days without any power of the Commissioner to condone such delay. In other words, the statute requires that the appeals must be filed within a fixed period beyond which it would not be open for the Commissioner to condone the delay. - Decided against the petitioner

Summary

Issues:
1. Delay in filing appeal against order dated 24.12.2014 passed by the Additional Commissioner of Central Excise.
2. Jurisdiction of the High Court to entertain a writ under Article 226 directly against the order in original.
3. Consideration of circumstances for condonation of delay in filing appeal.

Analysis:
Issue 1: The petitioner sought to quash the order dated 05.06.2015 passed by Commissioner (AppealsI) and another dated 24.12.2014 by the Additional Commissioner of Central Excise. The delay in filing the appeal was explained due to organizational restructuring and misplacement of the order. The Commissioner of Appeals rejected the appeal due to delay beyond the maximum condonable period. The High Court noted that the delay of 65 days was beyond the condonable 30-day limit, leading to the dismissal of the appeal.

Issue 2: The High Court recognized its power under Article 226 to entertain a writ directly against the original order, despite the statutory limitation of 60 days for filing an appeal. The Court referred to the Full Bench judgment in Panoli Intermediate (India) Pvt. Ltd case, emphasizing that the High Court's jurisdiction is not barred in such cases. The Court outlined specific circumstances where a writ petition could challenge the original adjudicating authority's order, ensuring justice and preventing gross injustice.

Issue 3: The petitioner's explanation for the delay in filing the appeal was considered insufficient by the High Court. The Court highlighted the statutory limitation of 60 days for filing an appeal, extendable by 30 days at the Commissioner's discretion. The petitioner's delay of 35 days beyond the maximum condonable period was viewed against the legislative intent to restrict appeals beyond the specified timeframe. The Court emphasized the importance of a well-explained delay and the prevention of gross injustice in considering condonation of appeal filing delays. Ultimately, the petition was dismissed due to the inadequate explanation for the delay.