2019 (1) TMI 773 - HC - Central Excise

Condonation of delay in filing appeal - case of Revenue is that the petitioner had not filed an application seeking condonation of delay before the respondent Commissioner and therefore there was no occasion for the Commissioner to consider the request for condonation of delay - Held that - This Court is of the opinion that an opportunity should be afforded to the petitioner to offer an explanation, by filing an application before the Commissioner seeking condonation of delay and the Commissioner is hereby directed to consider such application and thereafter proceed to pass orders on merits - petition allowed.

Summary

Issues:
1. Dismissal of appeal on grounds of delay and latches.
2. Clarification regarding notice period discrepancy.
3. Jurisdictional aspects and exceptional category for exercising power under Article 226.
4. Legal provisions for condonation of delay.
5. Lack of application for condonation of delay by petitioner.

Analysis:

1. The petitioner challenged the order dismissing their appeal based on delay and latches. The petitioner argued that the delay was not their fault, highlighting a discrepancy in the notice period mentioned in the show cause notice and the adjudicating order. The Assistant Commissioner rejected the petitioner's request for clarification, leading to the filing of the appeal. The petitioner contended that the appeal was filed in time from the date of the Assistant Commissioner's letter.

2. Citing the Division Bench decision, the petitioner's counsel emphasized the need for jurisdictional correctness and the potential for gross injustice to warrant interference under Article 226 of the Constitution. The court acknowledged the importance of correct interpretation of statutory provisions and the need for justice in such cases.

3. Referring to the Supreme Court decision in Collector, Land Acquisition, Anantnag, the court highlighted the importance of condoning delay to ensure substantial justice. The court emphasized the need to balance substantial justice against technical considerations, advocating for a pragmatic approach in such matters.

4. The respondent argued that the petitioner did not file an application for condonation of delay before the Commissioner, thus questioning the need for the Commissioner to consider such a request. However, the court, considering the principles of substantial justice and the need to provide an opportunity for explanation, directed the petitioner to file an application for condonation of delay before the Commissioner.

5. In conclusion, the court directed the Commissioner to consider the petitioner's application for condonation of delay in light of the legal principles discussed and to proceed with the case on merits. The court emphasized the need for expeditious resolution of the matter, given its origin in 2013, and disposed of the petition accordingly.