2020 (12) TMI 878 - HC - Central Excise

Condonation of delay in filing appeal - opportunity to explain the delay not provided - respondents is that this submission is made because it is urged that the appeal is decided without opportunity to the petitioner and there is violation of the principles of natural justice - HELD THAT - It appears rather indisputable that the petitioner is not heard by the first respondent, this Court is of the considered view that the impugned order could be quashed and the appeal could be restored on the file of the first respondent with liberty to the petitioner to file an application for condonation of delay, if such application is not already filed, and canvass for condonation of delay in filing the appeal while calling upon the first respondent to consider such application strictly in accordance with the provisions of the Central Excise Act, 1944 and the decisions on the jurisdiction to entertain the appeal beyond the proscribed period under the provisions of the Central Excise Act, 1944. Appeal is restored on the file of the Commissioner, Central Excise (Appeals-I), Bengaluru, the first respondents, for reconsideration with liberty to the petitioner to file an application for condonation of delay, if such application is not already filed, observing that the first respondent shall consider the same in accordance with the provisions of the Central Excise Act, 1944 and applicable law - petition allowed.

Summary

Issues:
1. Appeal rejection based on time limitation under Section 35 of the Central Excise Act, 1944 without hearing the petitioner.
2. Failure to provide an opportunity to explain the delay resulting in a violation of principles of natural justice.

Analysis:
1. The petitioner's appeal was rejected solely due to being filed beyond the time prescribed under Section 35 of the Central Excise Act, 1944, and even beyond the condonable period without being heard. The petitioner had received the order dated 9.9.2019 on 27.9.2019 and could not avail the appellate remedy due to confusion regarding the Sabka Vishwas Scheme. The petitioner argued that they should have been given an opportunity to explain the delay, which would have allowed justification for the belated appeal and condonation of the delay. The failure to extend this opportunity was deemed a violation of natural justice principles.

2. The respondents contended that the Central Excise Act prohibits entertaining appeals beyond the prescribed limitation period, including the condonable period. However, they acknowledged that if the petitioner was not given a reasonable opportunity to show cause for condonation of delay and justify the merits of the appeal, the petition should be allowed for reconsideration. The respondents emphasized that the appeal was decided without giving the petitioner an opportunity, leading to a breach of natural justice principles.

3. Considering the arguments presented, the court determined that the petitioner was not heard by the first respondent, leading to a decision to quash the impugned order and restore the appeal for reconsideration. The court directed the appeal to be reinstated on the file of the first respondent with the liberty for the petitioner to file an application for condonation of delay. The first respondent was instructed to consider such application in compliance with the Central Excise Act, 1944, and relevant legal provisions.

In conclusion, the court allowed the petition, quashed the order rejecting the appeal, and restored the appeal for reconsideration with specific instructions for the petitioner to file an application for condonation of delay. The first respondent was directed to review the application in accordance with the applicable laws and provisions. The petitioner was required to appear before the first respondent on a specified date to fulfill the necessary procedural requirements.