2015 (9) TMI 1026 - HC - Central Excise

Condonation of delay - Appeal before the commissioner (appeals) was filed on 91st day of receiving the order - Held that - Admittedly, there has been a delay in filing the appeal before the Appellate Commissioner. Such delay was beyond his power to condone. Statutorily it is recognized that the Commissioner could not have condoned delay beyond 30 days. However, the petitioner missed the deadline by one day, perhaps on a bonafide belief that such appeal could still be considered within the extendable period if it is presented not on the 90th day, but immediately preceding the 90th day. Be that as it may, the petitioner s ground of no opportunity by the adjudicating authority also requires consideration. This Court has in the past taken a view that even though in cases where the Commissioner is powerless to condone the delay beyond the prescribed period, the High Court is not devoid of its jurisdiction under Article 226 of the Constitution of India in rare exceptional cases to examine the validity and legality of the order of the adjudicating authority. Very base order was passed without proper notice of hearing to the petitioner, such order is set aside. Proceedings are traced back to the adjudicating authority for fresh consideration and disposal in accordance with law.

Summary

Issues:
1. Delay in filing appeal before the Appellate Commissioner.
2. Lack of participation of the petitioner in the adjudication proceedings.
3. Power of High Court under Article 226 to examine the validity and legality of the order of the adjudicating authority.

Analysis:

1. Delay in filing appeal before the Appellate Commissioner:
The petitioner missed the deadline by one day, believing the appeal could still be considered within the extendable period. The Appellate Commissioner dismissed the appeal due to the delay, which he could not condone beyond 30 days. However, the High Court, citing a previous decision, acknowledged its jurisdiction under Article 226 to review the order in exceptional cases. Referring to the case of Lathia Industrial Supplies Company Private Limited Vs. The Commissioner, the High Court emphasized that in cases of gross injustice where the delay is well explained, the High Court can intervene, even if the statutory limit for appeal condonation has passed.

2. Lack of participation of the petitioner in the adjudication proceedings:
The petitioner contended that the adjudicating authority passed the order without the petitioner's participation, as no notice of hearing was served. This led to the proceedings being ex parte. Considering this, the High Court set aside the order and directed the proceedings to be reconsidered by the adjudicating authority. The petitioner was instructed to appear before the authority on a specified date without the need for a statutory notice, allowing for a fresh consideration and disposal of the case in accordance with the law.

3. Power of High Court under Article 226 to examine the validity and legality of the order of the adjudicating authority:
In light of the petitioner's argument regarding the lack of opportunity due to the absence of a hearing notice, the High Court exercised its authority under Article 226 to quash the original order. The Court emphasized that even when the statutory limit for appeal condonation has lapsed, exceptional circumstances of gross injustice and lack of opportunity may warrant the High Court's intervention to ensure fairness and justice. By setting aside the original order and remanding the case to the adjudicating authority, the High Court demonstrated its commitment to upholding due process and fairness in legal proceedings.