2019 (7) TMI 203 - HC - Central Excise

Condonation of delay in filing appeal - power of Appellate Authority to condone delay - Jurisdiction - HELD THAT - The contentions raised do not fall within the scope of judicial review as explained. At the highest, the contentions raised may have warranted some examination the exercise of appellate jurisdiction, but not in exercise of powers of judicial review. In this case, 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. There is absolutely no explanation for inordinate delay in the institution of the petition - petition dismissed.

Summary

Issues:
Challenge to orders dated 10.03.2016, 25.05.2017, and 08.01.2018 - Appeal beyond 90 days - Condonation of delay - Judicial review scope - Clerical mistake in availing Cenvat Credit - Suppression of facts - Intention to evade duty - Assessment proceeding jurisdiction - Delay in instituting the petition.

Analysis:
The petition challenged orders dated 10.03.2016, 25.05.2017, and 08.01.2018, which were dismissed as time-barred due to appeal being instituted beyond the 90-day period extendable by the Appellate Authority. The Tribunal upheld this dismissal citing precedents like Singh Enterprises vs. Commissioner of Central Excise, Jamshedpur, and Full Bench decisions of Gujarat and Hyderabad High Courts. These decisions emphasized the limitation of condoning delays beyond 90 days, even in Article 226/227 petitions, ensuring no interference with the mentioned orders.

Regarding the order-in-original dated 10.03.2016, the petitioner contended a clerical mistake in availing Cenvat Credit, asserting no suppression of facts or intent to evade duty. However, the respondent argued that such contentions did not challenge jurisdiction or principles of natural justice violation, warranting dismissal. The court noted that these contentions lacked grounds for judicial review as explained by the Gujarat High Court, suggesting they were more suitable for appellate jurisdiction, not judicial review.

The court highlighted the inordinate delay in instituting the petition, filed on 29th September 2018 despite orders made in 2016 and 2018. The petitioner failed to provide any explanation for this delay, claiming no laches, which further weakened their case. The court found the delay unreasonable and an additional reason to dismiss the petition, emphasizing the importance of timely legal actions in such matters.

In conclusion, the court dismissed the petition based on the lack of merit in challenging the orders dated 25.05.2017 and 08.01.2018, the unsuitability of contentions for judicial review, and the significant delay in instituting the petition. No costs were awarded in this case, considering the circumstances.