2008 (11) TMI 238 - HC - Service Tax

Appeal before Commissioner (Appeals) period of limitation condonation delay of 46 days held that - we find that the case of the respondent (writ petitioner) is covered by the decision of the Division Bench of this Court in Indian Coffee Workers Co-op. Society Ltd. following the decision aforesaid we set aside the order dated 24th January 2006 passed by the learned single Judge in W.P. No. 26479 of 2005 and allow the writ appeal. - the appellate authority having no jurisdiction to condone such delay rightly dismissed the appeal as time-barred delay can not be condoned beyond 30 days by the Commissioner (appeals)

Summary

Issues:
1. Condonation of delay in filing an appeal under Article 226 of the Constitution of India.
2. Power of appellate authority to condone delay under the Customs Act, 1962.
3. Jurisdiction of High Court under Article 226 to direct appellate authority to decide appeal on merits.

Analysis:
1. The appeal in question was filed by the Assistant Commissioner of Customs and two others against an order setting aside a previous decision and remitting the matter for a fresh decision. The High Court observed that the respondent had provided a valid explanation for the delay in filing the appeal. The main contention raised by the appellants was that the High Court, under Article 226 of the Constitution of India, cannot condone the limitation beyond the period prescribed by the statute for determining the appeal on merits.

2. The respondent, engaged in exporting cotton shirts, had claimed drawback for exported goods. The appellants issued a show cause notice for non-realization of sale proceeds within the specified period. The respondent's appeal against the order was delayed by 46 days, which the appellate authority refused to condone, leading to the dismissal of the appeal as time-barred. The appellants argued that the appellate authority could only condone a 30-day delay as per the Customs Act, 1962.

3. The Division Bench decision in a similar case emphasized that the appellate authority could only condone a delay of up to 30 days and that the High Court, under Article 226, cannot extend the period of limitation. Despite the respondent's failure to contest the appeal, the Court noted that the appellate authority had no jurisdiction to condone the 46-day delay in filing the appeal. Relying on the Division Bench decision, the High Court set aside the previous order and allowed the writ appeal, emphasizing that the High Court could not rewrite the provisions of the Act while exercising jurisdiction under Article 226.

This comprehensive analysis covers the issues of condonation of delay, power of the appellate authority, and the jurisdiction of the High Court under Article 226 in the context of the legal judgment delivered by the High Court of Madras.