2022 (5) TMI 866 - HC - Central Excise

Condonation of delay of 1433 days in filing appeal before the tribunal - Tribunal condoned the delay in revenue appeal - error of law - error apparent on the face of record or not - Revenue submitted that no error not to speak of any error of law could be said to have been committed by the Tribunal in passing the impugned order condoning the delay of 1433 days - HELD THAT - In the case of Nagendra Nath Bora v. Commissioner of Hills Division and Appeals, Assam 1958 (2) TMI 37 - SUPREME COURT , the Supreme Court laid down what the expression error apparent on the face of the record connotes. The jurisdiction of the High Court on certiorari may be invoked if it is only an error of law apparent on the face of the record and not every error either of law or fact which can be corrected by a superior court in the exercise of its statutory powers as a court of appeal or revision. Where the errors cannot be said to be errors of law apparent on the face of the record but they are merely errors in appreciation of documentary evidence of affidavits, errors in drawing inferences or omission to draw inferences, or in other words, errors which a court sitting as a court of appeal only could have examined and, if necessary, corrected, there is no case for the exercise of jurisdiction under Article 226 of the Constitution. The principles underlying the jurisdiction to issue a writ or order of certiorari are no more in doubt, but the real difficulty arises in applying the principles to the particular facts of a given case. In view of the facts and circumstances and the law laid down by the Supreme Court and also the sufficient cause assigned in the applications for condonation of delay, the Revenue has assigned sufficient cause for the purpose of getting the delay condoned and the Tribunal was justified in allowing the applications - application dismissed.

Issues Involved:
1. Legality of the interim order by the Appellate Tribunal.
2. Timeliness and validity of the appeals filed by the Revenue.
3. Condonation of delay in filing appeals against co-noticees.
4. Jurisdiction and exercise of discretion by the Tribunal in condoning the delay.

Detailed Analysis:

1. Legality of the Interim Order by the Appellate Tribunal:
The writ applicants sought a writ of prohibition to prevent the Appellate Tribunal from implementing interim order No.5/2022 dated 24.01.2022, and from deciding appeals filed by the Revenue against them. They argued that the appeals were time-barred and not entertainable on merits. The Tribunal had earlier passed an order condoning a delay of 1433 days in filing appeals against the co-noticees, which the writ applicants contended was illegal and without jurisdiction.

2. Timeliness and Validity of the Appeals Filed by the Revenue:
A show cause notice was issued on 29th September 2015 under Section 11A of the Central Excise Act, 1944, demanding recovery of wrongly availed CENVAT Credit amounting to Rs. 19,09,76,410/- from M/s. Shah Alloys Ltd. (SAL). The Commissioner dropped the proceedings against SAL and others on 21st September 2017. The Revenue filed an appeal against SAL within the stipulated time but did not initially file appeals against the co-noticees. It was only after a preliminary objection raised by SAL that the Revenue filed appeals against the co-noticees, which were delayed by 1433 days.

3. Condonation of Delay in Filing Appeals Against Co-noticees:
The Tribunal condoned the delay of 1433 days, noting that the Revenue had intended to challenge the dropping of penalties against all co-noticees. The Tribunal found that the delay was due to a technical mistake and not a deliberate or mala fide act. The Tribunal exercised its discretion to condone the delay, considering the substantial amount involved and the overall interest of justice.

4. Jurisdiction and Exercise of Discretion by the Tribunal in Condoning the Delay:
The High Court examined whether the Tribunal acted within its jurisdiction and appropriately exercised its discretion in condoning the delay. The Court referred to several Supreme Court judgments emphasizing that the expression "sufficient cause" should be interpreted liberally to advance substantial justice. The Court noted that the Tribunal had not acted without jurisdiction or in violation of principles of natural justice. The Tribunal's decision to condone the delay was based on a pragmatic and justice-oriented approach, considering the bureaucratic process and the substantial public interest at stake.

Conclusion:
The High Court held that the Tribunal had properly considered the applications for condonation of delay filed by the Revenue. The Tribunal's decision was justified in light of the law laid down by the Supreme Court, which advocates for a liberal interpretation of "sufficient cause" to advance substantial justice. The Court found no error in the Tribunal's order and dismissed the writ application, allowing the Revenue to proceed with its appeals against the writ applicants and other co-noticees.

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