2016 (10) TMI 389 - HC - Central Excise

Condonation of delay - Section 35G of the Central Excise Act, 1944 - assessee instead of complying with the pre-deposit requirement, preferred to file appeal further after huge delay - Held that - Stricto sensu, no substantial question of law would arise in cases of this nature. But, the statutory right of appeal cannot become redundant, by the dismissal of an application for condonation of delay, on technical grounds. All that one has to see is whether the interest of the Revenue will stand protected, even while recognizing the right of the assessee to exercise the statutory remedies available to them. It was due to the financial hardship that assessee did not to comply with the demand, but filed a further appeal after huge delay. The appellant is prepared to comply with the pre-deposit condition imposed by the appellate Commissioner. Thus, by granting one opportunity to the appellant to comply with the pre-deposit condition imposed by the Commissioner, the interest of both the parties would be balanced. While this will ensure some revenue to the respondent, it would restore the right of appeal to the appellant/assessee. The appellant granted time till 15.10.2016, to make a deposit of 50% of the duty of excise of ₹ 32,29,153/-, together with 50% of the interest upon the said amount, at the applicable rates, from the date of the order in original up to the date of making the deposit before the Commissioner (Appeals) - delay condoned - appeal allowed - decided in favor of appellant.

Summary

Issues:
Delay in filing appeal under Section 35G of the Central Excise Act, 1944 challenging CESTAT's order refusing to condone the delay in filing the appeal against the order of the appellate Commissioner.

Analysis:

The judgment deals with an appeal filed under Section 35G of the Central Excise Act, 1944, challenging the delay in filing the appeal against an order of the appellate Commissioner. The appellant had failed to comply with the pre-deposit condition imposed by the Commissioner, resulting in the dismissal of the appeal by the appellate Commissioner. Subsequently, the appellant filed a further appeal before the CESTAT along with an application for condonation of the delay, which was dismissed by the Tribunal. The High Court acknowledged that no substantial question of law arose in this case but emphasized that the statutory right of appeal should not become redundant due to technical grounds. The Court considered the hardship faced by the assessee and the interest of the Revenue in balancing the rights of both parties.

The appellate Commissioner had recognized the hardship faced by the assessee in complying with the pre-deposit condition. The Court noted that the appellant was now willing to comply with the pre-deposit condition and, therefore, decided to grant one opportunity to the appellant to fulfill this condition. By allowing the appellant to comply with the pre-deposit condition, the Court aimed to balance the interests of both parties. If the appellant complies with the condition within the specified time frame, the appeal before the Commissioner (Appeals) will be restored and disposed of on merits. However, failure to comply with the condition would result in the appeal being treated as dismissed, confirming the Tribunal's order.

In conclusion, the High Court allowed the appeal, set aside the order of the CESTAT, and granted the appellant time to make the necessary deposit. The judgment emphasized the importance of upholding the statutory right of appeal while ensuring the interests of both the assessee and the Revenue are protected.