2018 (10) TMI 538 - HC - Central Excise

Condonation of delay in filing appeal - Limitation act - Section 35C of the Central Excise Act, 1944 - Power of Commissioner of Central Excise (Appeals) to condone the delay - Held that - The Petitioner was aggrieved with the order dated 30th November 2015 (received on 11th December 2015) passed by the Additional Commissioner of Central Excise confirming a demand. This grievance was sought to be addressed by filing on 14th December 2015 an rectification/review application before the Additional Commissioner of Central Excise - the above Application dated 14th December 2015 has not yet been disposed of. It was in early June 2016 that the Officers of the Respondents enquired of the Petitioner whether or not an Appeal had been filed from the Order dated 30th November 2015. This resulted in the Petitioner filing an Appeal on 11th June 2016 to the Commissioner of Central Excise (Appeals). Both the Commissioner of Central Excise (Appeals) as well as the Tribunal rejected the Petitioner s Appeal on the ground that there is no power in the Commissioner of Central Excise (Appeals) to condone the delay beyond the aggregate period of 90 days provided under Section 35 of the Act - This is not correct in view of the decision the Supreme Court in M.P. Steel Corporation Vs. Commissioner of Central Excise 2015 (4) TMI 849 - SUPREME COURT . Thus, the Tribunal ought to have considered whether or not the Petitioner has made out a case which would entitle it to the benefit of the principle available under Section 14 of the Limitation Act, 1963. That is to examine the facts and determine whether the delay in filing the Appeal to the Commissioner of Central Excise (Appeals) could be condoned on application of the above principle. The impugned order dated 6th October 2017 of the Tribunal is quashed and set aside. The Petitioner s Appeal is restored to the file of the Tribunal for fresh disposal on merits on consideration of the reason for the delay in filing the Appeal.

Summary

Issues:
Challenge to order of Customs, Excise and Service Tax Appellate Tribunal under Article 226 of the Constitution of India for dismissing Appeal under Section 35C of the Central Excise Act, 1944 due to delay in filing.

Analysis:
The judgment involves a challenge to an order passed by the Customs, Excise and Service Tax Appellate Tribunal dismissing the Petitioner's Appeal under Section 35C of the Central Excise Act, 1944. The Petitioner's Appeal was dismissed by the Tribunal on the grounds that it was filed beyond the aggregate period of 90 days allowed for filing an Appeal. The Commissioner of Central Excise (Appeals) had rejected the Appeal earlier on similar grounds. However, the Petitioner contended that there were errors in the order disallowing Cenvat credit and imposing a penalty, prompting them to file for rectification/review. The delay in filing the Appeal was attributed to the pendency of the rectification/review application before the Additional Commissioner of Central Excise.

The High Court noted that both the Commissioner of Central Excise (Appeals) and the Tribunal had rejected the Appeal based on the lack of power to condone the delay beyond the prescribed period. However, the Court referred to a decision by the Supreme Court in M.P. Steel Corporation Vs. Commissioner of Central Excise, which held that the principle of Section 14 of the Limitation Act, 1963 could be applied to proceedings before authorities under the Act. Consequently, the Tribunal was directed to consider whether the Petitioner was entitled to the benefit of the principle under Section 14 of the Limitation Act, 1963, to condone the delay in filing the Appeal.

As a result of the Supreme Court's decision, the High Court quashed the Tribunal's order and restored the Petitioner's Appeal for fresh disposal on merits, emphasizing the need to consider the reasons for the delay in filing. The Court clarified that it had not assessed the Petitioner's case on merits regarding the application of Section 14 of the Limitation Act, 1963, leaving it to the Petitioner to present their case before the Tribunal for appropriate consideration. Additionally, the High Court directed the Additional Commissioner of Central Excise to dispose of the Petitioner's pending rectification/review application within four weeks, emphasizing the importance of timely disposal to prevent undue hardship to litigants.

In conclusion, the Petition was disposed of with no order as to costs, highlighting the significance of considering the principles of the Limitation Act, 1963 in proceedings before quasi-judicial authorities under the Central Excise Act, 1944.