2008 (9) TMI 392 - HC - Central Excise

Delay in filing appeal - Condonation of delay - Held that - It is no doubt true that the appellate authority has jurisdiction to condone delay up to 15 days and in the instant case, the delay is seven days and therefore, the appellate authority has power to condone the delay. However, in our view, even if there is a delay of one day, at least other side is required to be heard on the application for condonation of delay and thereafter, appropriate orders can be passed in connection with the condonation of delay. The learned Senior Advocate Mr. Desai, submitted that the appeal itself is fixed of hearing before the aforesaid Appellate Authority on 24-9-2008. The Appellate authority may accordingly decide the condonation application before taking the appeal for hearing and delay application may be decided first without any further delay on its own merits so that ultimately if the delay is condoned, the Appellate Authority can proceed further with the hearing of appeal on merits.

Summary

Issues involved:
Challenge to order condoning delay in filing appeal before appellate authority for Industrial and Financial Reconstruction.

Detailed Analysis:
1. The petitioner-company challenged an order by the appellate authority for Industrial and Financial Reconstruction that condoned a seven-day delay in filing an appeal. The respondent, Commissioner of Central Excise and Customs, filed the appeal against an order by the BIFR, leading to a miscellaneous application for condonation of delay.

2. The petitioner filed a review application to recall the order condoning the delay, arguing that the order was passed without hearing them. The review application was dismissed on the grounds of non-maintainability and the permissible delay for condonation. The petitioner contested the order, claiming they were not heard before the delay was condoned.

3. The petitioner's representative contended that the delay condonation order was unjust as they were not given an opportunity to present their case. The respondent's representative acknowledged the delay but emphasized the importance of hearing all concerned parties before condoning any delay.

4. The High Court analyzed the situation and noted that while the appellate authority can condone delays up to a certain period, natural justice demands that the affected party be given a chance to present their arguments. The Court emphasized the necessity of hearing both sides before making decisions on delay condonation applications.

5. The Court set aside the impugned order and directed the Appellate Authority for Industrial and Financial Reconstruction to reconsider the condonation application, ensuring that both parties are heard. The Appellate Authority was instructed to make a fresh decision based on merits and available evidence, following the principles of natural justice.

6. The respondent's representative agreed to have the condonation application heard afresh, and the Court ruled in favor of setting aside the previous order for a fair hearing. The Court stressed the importance of deciding on the delay application before proceeding with the appeal hearing to maintain procedural fairness and adherence to legal principles.