2009 (4) TMI 194 - HC - Central Excise

Restoration of the Appeal dismissed for non-prosecution - Held that - In view of the categorical and unequivocal observations with regard to the law on condonation of delay in filing appeals we are constrained to dismiss the Appeal as it has been filed beyond the prescribed period of 180 days. We restrain ourselves from proceeding under sub-section (9) of Section 35G. Accordingly, the Appeal is dismissed as being barred by the principles of prescription.

Summary

Issues:
1. Restoration of Appeal dismissed for non-prosecution.
2. Filing of Appeal under Section 35G of the Central Excise Act, 1944.
3. Objection raised regarding the timeliness of the Appeal.
4. Interpretation of Section 35G in relation to condonation of delay.
5. Comparison of Section 35G and Section 35H of the Act.
6. Consideration of the power to condone delay in presenting an Appeal.
7. Dismissal of the Appeal due to being filed beyond the prescribed period.
8. Granting a Certificate under Section 134A for appeal to the Supreme Court.

Analysis:

1. The judgment pertains to the restoration of an Appeal that was dismissed for non-prosecution. An application was filed for restoration, which was allowed based on the averments made in the Application, leading to the Appeal being restored to its original number.

2. The Appeal in question was filed under Section 35G of the Central Excise Act, 1944 against the Final Order of the Customs Excise and Service Tax Appellate Tribunal passed on a specific date.

3. An objection was raised regarding the timeliness of the Appeal, contending that it should be dismissed as it was filed after the expiry of the period set down in Section 35G. Case laws were cited to support the argument for dismissal.

4. The judgment delves into the interpretation of Section 35G concerning the condonation of delay in filing the Appeal. The Court considered the provisions of Section 35G and the arguments presented by both parties regarding the timeliness of the Appeal.

5. A comparison was drawn between Section 35G and Section 35H of the Act to highlight the differences in the provisions related to filing Appeals and seeking references to the High Court.

6. The Court considered the power to condone delay in presenting an Appeal, specifically analyzing the relevant provisions of the Code of Civil Procedure and their applicability to the case at hand.

7. Ultimately, the Appeal was dismissed for being filed beyond the prescribed period of 180 days, citing the principles of prescription as the reason for dismissal.

8. In the unique circumstances of the case, a Certificate under Section 134A of the Constitution of India was granted to the Appellant to appeal to the Supreme Court of India, providing a potential avenue for further legal recourse.