2018 (9) TMI 250 - HC - Central Excise

Condonation of delay in filing appeal - petition was filed on 10th April 2017 i.e. admittedly within the 60 days - Held that - Apex Court in M.P. Steel Corporation Vs. Commissioner of Central Excise (Appeals) 2015 (4) TMI 849 - SUPREME COURT on an identical/similar facts arising under the Customs Act, 1962 has taken a view that even where the statute provides for a period of limitation including the extended period, yet the quasi judicial authorities such as Commissioner of Customs (Appeals) would have powers to condone the delay by invoking the principle of Section 14 of the Limitation Act, 1963 - the delay in filing the Appeal from the impugned order dated 31st January 2017 condoned, provided it is filed within a period of two weeks from today - petition disposed off.

Summary

Issues:
Challenge to order under Central Excise Act, 1944 based on breach of natural justice; Availability of statutory alternative remedy under Section 35 of the Act; Extension of time to file an Appeal before the Commissioner of Central Excise (Appeals); Justifiability of exercising extraordinary writ jurisdiction; Condonation of delay in filing Appeal.

Analysis:
The judgment by the Bombay High Court addressed a petition challenging an order under the Central Excise Act, 1944, citing a breach of natural justice. The court noted the availability of a statutory alternative remedy under Section 35 of the Act to challenge the impugned order before the Commissioner Central Excise (Appeals), indicating a reluctance to entertain the petition under its extraordinary writ jurisdiction. The petitioner argued that the impugned order was passed without effective hearing, contending a breach of natural justice as the Additional Commissioner did not wait for further submissions despite granting time for the same. However, the court observed from the record that the impugned order did not indicate the grant of further time, but rather recorded the petitioner's reliance on certain documents and earlier submissions during the hearing.

The court emphasized that the disputed issue regarding the breach of natural justice should be appropriately dealt with by the Appellate Authority under the Act, highlighting the importance of exhausting statutory remedies before seeking writ jurisdiction. Despite the petitioner's bona fide prosecution of the petition, the court extended time for filing an Appeal before the Commissioner of Central Excise (Appeals), considering the exclusion of time spent on the petition. The respondent objected to this extension, citing Section 35 of the Act allowing the Commissioner of Central Excise (Appeals) to condone delays beyond the normal period.

The court clarified that the petitioner filed the petition within the stipulated 60 days without any delay or negligence, believing in the court's writ jurisdiction. However, the court disagreed with the petitioner's contention of justifying the exercise of extraordinary writ jurisdiction, emphasizing the availability of an efficacious alternative remedy under the Act. Referring to a previous judgment, the court highlighted that quasi-judicial authorities could condone delays, urging the petitioner to file an Appeal within two weeks to be considered on merits by the Appellate Authority. The judgment concluded by disposing of the petition in the aforementioned terms, emphasizing the importance of complying with statutory requirements for filing an Appeal, including the necessary deposit as per Section 35 of the Act.