2019 (6) TMI 1140 - HC - Central Excise

Condonation of delay in filing appeal - Time Limitation - appeal was instituted beyond period of 90 days, i.e., beyond the period of maximum extendable period by the Appellate Authority - HELD THAT - The petitioner, delayed the institution of appeal and therefore, cannot expect that the this Court converts itself into an appeal court whilst exercising powers of judicial review under Article 226 of the Constitution of India. The contention as raised would require reevaluation and re-appreciation of factual position. Such an exercise cannot be undertaken in the exercise of limited jurisdiction of judicial review. The order-in-original was made on 3rd August 2015 by the Assistant Commissioner of Central Excise. Even the final order was made by the Tribunal on 6th October 2017. This petition was however, instituted only on 29th September 2018. There is absolutely no explanation for inordinate delay in the institution of the petition. The averment in the petition is that there is no delay or laches in instituting this petition. Therefore, the petitioner, far from acknowledging the delay and explaining the same, does not even admit that there is any delay or laches. This is an additional ground for dismissing this petition. Petition dismissed.

Issues:
Challenge to orders-in-original, appeal dismissal for being time-barred, condonation of delay beyond 90 days, jurisdiction of Appellate Authority, compliance with Cenvat Credit Rules, imposition of penalty, exercise of powers of judicial review under Article 226 of the Constitution, delay in instituting the petition.

Analysis:

1. Challenge to Orders-in-Original: The petitioner challenged the orders-in-original dated 03.08.2015 passed by the Assistant Commissioner of Central Excise, which led to subsequent appeals. The Appellate Authority dismissed the appeal as time-barred, a decision upheld by the Tribunal. The High Court noted that the challenge to these orders lacked merit based on previous judgments by the Apex Court and Full Benches of other High Courts, which held that the Appellate Authority cannot condone delays beyond 90 days.

2. Compliance with Cenvat Credit Rules: The petitioner argued that they had reversed the Cenvat Credit before the issuance of the Show Cause Notice, complying with Rule 6(1) of the Cenvat Credit Rules, 2004. They contended that the imposition of penalty was unjustified as the credit had been reversed proportionately. However, the respondents disputed this argument, stating that it did not challenge the jurisdiction or principles of natural justice, leading to a call for dismissal of the petition.

3. Exercise of Powers of Judicial Review: The High Court analyzed the scope of judicial review as explained by the Full Bench of the Gujarat High Court. The contention raised by the petitioner was deemed not within the purview of judicial review but rather an issue for appellate jurisdiction. The Court highlighted that the delay in instituting the appeal prevented a detailed reevaluation of the factual position, emphasizing the limited scope of judicial review under Article 226 of the Constitution.

4. Delay in Instituting the Petition: The Court observed a significant delay in instituting the petition, filed on 29th September 2018 despite the final order being made by the Tribunal on 6th October 2017. The petitioner's failure to acknowledge or explain this delay, coupled with the lack of admission of any delay or laches, was considered a valid ground for dismissing the petition.

5. Final Decision: Considering the lack of merit in the challenges raised, the absence of a valid ground for interference, and the unexplained delay in instituting the petition, the High Court dismissed the petition without any order as to costs, concluding the legal proceedings on the matter.

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