2018 (4) TMI 1498 - HC - Central Excise

Condonation of delay in filing appeal - whether the Commissioner has no power to condone the delay beyond the period of 30 days in terms of Section 35(1) of the Central Excise Act, 1944, which provides for a period of 60 days for filing an Appeal? - Held that - since the impugned adjudication order suffers from illegality, the delay deserves to be condoned by this Court in exercise of the extraordinary jurisdiction under Article 226 of the Constitution of India - this Court is of the opinion that the delay deserved to be condoned by the Commissioner of Appeals. In view of the statutory limit on his powers, this Court exercising its extraordinary jurisdiction is of the opinion that the said delay deserves to be condoned - the delay of 32 months as stated in the impugned order in filing the appeal is condoned and the appeal is restored to the file of the Respondent-Commissioner of Appeals, with a direction to the said Authority to decide the appeal on merits in accordance with law. Petition allowed.

Summary

Issues:
1. Delay in filing appeal before the Commissioner of Appeals.
2. Power of the Commissioner of Appeals to condone delay.
3. Jurisdiction of the High Court under Article 226 of the Constitution of India.
4. Compliance with pre-deposit conditions for maintaining the appeal.

Issue 1: Delay in filing appeal before the Commissioner of Appeals

The petitioner, an assessee firm, filed a writ petition seeking to quash the order-in-original and order-in-appeal passed by the Respondents. The petitioner argued that there was no delay in filing the appeal after receiving the certified copy of the order-in-original. The Respondent Authority dismissed the appeal citing a delay of 32 months. The petitioner contended that the delay should be condoned due to the illegality in the adjudication order.

Issue 2: Power of the Commissioner of Appeals to condone delay

The Commissioner of Appeals contended that they lacked the power to condone the delay beyond 90 days as per Section 35(1) of the Central Excise Act, 1944. The petitioner argued that the delay should be condoned by the High Court under Article 226 of the Constitution of India. The High Court, exercising its extraordinary jurisdiction, agreed that the delay deserved to be condoned and did so accordingly.

Issue 3: Jurisdiction of the High Court under Article 226 of the Constitution of India

The petitioner relied on a Division Bench decision to argue that the High Court could intervene if the authority passed the order without jurisdiction or in excess of jurisdiction, resulting in gross injustice. The High Court, in line with this argument, exercised its power under Article 226 to condone the delay and direct the Commissioner of Appeals to decide the appeal on merits.

Issue 4: Compliance with pre-deposit conditions for maintaining the appeal

The petitioner confirmed before the Court that the pre-deposit conditions for maintaining the appeal had been fulfilled. The High Court, after condoning the delay, directed the petitioner to appear before the Commissioner of Appeals and ensured that the appeal would be decided within three months from the specified date.

In conclusion, the High Court disposed of the writ petition, allowing the appeal to be restored to the file of the Commissioner of Appeals for a decision on merits. The Court emphasized the importance of discretion for Appellate Authorities to condone delays caused by sufficient reasons, highlighting the need for a just and equitable approach in such matters.