2017 (9) TMI 1074 - HC - Service Tax

Power of Commissioner of Central Excise (Appeals) to condone delay - Section 35(1) of the Central Excise Act, 1944 - condonation of delay - the delay was caused on account of illness of the concerned official of the petitioner-company - Held that - In view of the limitation of the respondent- authority by a statutory provision, even the genuine cases for condonation of delay cannot be considered and that is why such delays have been condoned by this Court in some cases - Since the present case is also of the same nature, the present petition is also disposed of in same terms and condoning the delay - similar issue decided in the case of M/s. Apotex Research Pvt. Limited, M/s. Surfa Coats (India) Private Limited Versus The Union of India, The Commissioner of Central Excise (Appeals-I) , The Additional Commissioner of Central Excise 2017 (1) TMI 872 - KARNATAKA HIGH COURT . The matter is restored to the said respondent-Commissioner of Central Excise (Appeals), Mysore, for deciding the appeal on merits - delay condoned - petition allowed - decided in favor of petitioner.

Issues:
1. Delay in filing appeal beyond prescribed period.
2. Commissioner's power to condone delay.
3. Exercise of extraordinary jurisdiction under Article 226.
4. Compliance with pre-deposit conditions for appeal.
5. Illness as a reason for delay in filing appeal.

Issue 1: Delay in filing appeal beyond prescribed period:
The judgment involves a case where the delay in filing an appeal beyond the prescribed period was a crucial issue. The petitioner argued that the delay of 184 days should be condoned due to the circumstances surrounding the communication of the original order and the subsequent filing of the appeal.

Issue 2: Commissioner's power to condone delay:
The petitioner contended that the Commissioner of Appeals had the power to condone the delay in filing the appeal beyond the initial 60-day period as per Section 35(1) of the Central Excise Act, 1944. However, the respondent argued that the Commissioner had no authority to condone the delay beyond the specified period.

Issue 3: Exercise of extraordinary jurisdiction under Article 226:
The petitioner sought the exercise of extraordinary jurisdiction under Article 226 of the Constitution of India to condone the delay in filing the appeal. The petitioner relied on a Division Bench decision to support their argument that in cases of gross injustice or jurisdictional errors, the court could intervene under Article 226.

Issue 4: Compliance with pre-deposit conditions for appeal:
The petitioner informed the court that the pre-deposit conditions for maintaining the appeal had been fulfilled. This compliance was a crucial factor in the court's decision to condone the delay and restore the appeal for further consideration on merits.

Issue 5: Illness as a reason for delay in filing appeal:
In a separate but related case, the delay in filing the appeal was attributed to the illness of an official of the petitioner-company. The court considered this reason and ultimately decided to condone the delay, emphasizing that even genuine cases for condonation of delay should be considered within the statutory limitations.

In conclusion, the judgment addressed various issues related to the condonation of delay in filing appeals beyond the prescribed periods, the Commissioner's powers in such matters, the exercise of extraordinary jurisdiction under Article 226, compliance with pre-deposit conditions, and the consideration of genuine reasons for delays such as illness. The court's decision to condone the delays and restore the appeals for further consideration on merits highlighted the importance of balancing statutory limitations with the principles of justice and fairness in legal proceedings.

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