2017 (1) TMI 872 - HC - Central Excise

Power of Commissioner to condone delay - Section 35(1) of the Central Excise Act, 1944 - condonation of delay - petitioner-assessee has submitted that since the original order was communicated to the petitioner-Company on 17.12.2015, but was served only on the security personnel and not on the authorized officer on the Company, the same was not delivered properly in the office and escaped the notice of the Company and the appeal could not be filed in time - Held that - this Court is of the opinion that the reasons assigned by the petitioner-assessee appear to be of sufficient and the delay deserved to be condoned by the Commissioner of Appeals. However, in view of the statutory limit on his powers, this Court exercising its extraordinary jurisdiction is of the opinion that the said delay deserves to be condoned. It is hereby condoned - appeal restored to the file of the respondent- Commissioner of Appeals. Moreover this Court is of the opinion that discretion ought to have been given to the Appellate Authorities under the Act to condone such delays, if caused by sufficient reason. Be that as it may. Delay condoned - petition allowed - decided in favor of petitioner.

Summary

Issues:
- Appeal against order rejecting appeal as barred by limitation
- Power of Commissioner of Appeals to condone delay
- Exercise of extraordinary jurisdiction under Article 226
- Compliance with pre-deposit conditions for appeal

Analysis:
1. The petitioner filed a writ petition challenging the order of the Commissioner of Central Excise rejecting the appeal as barred by limitation of 184 days. The Commissioner contended that he had no power to condone the delay beyond the prescribed period of 30 days under Section 35(1) of the Central Excise Act, 1944. The provision allows for a 60-day period for filing an appeal, with a proviso enabling the Commissioner to condone the delay for a further 30 days if sufficient cause is shown.

2. The petitioner argued that the original order was not properly served on the company due to being delivered only to security personnel, causing the appeal not to be filed in time. However, the Commissioner was constrained by the statutory limitation in Section 35(1) and could not exercise discretion in this matter. The petitioner sought condonation of delay based on a Division Bench decision emphasizing the exceptional circumstances warranting interference under Article 226 of the Constitution.

3. The Court acknowledged the sufficiency of reasons presented by the petitioner and decided to condone the delay of 184 days, restoring the appeal to the Commissioner of Appeals for a decision on merits. While recognizing the statutory limits on the Commissioner's powers, the Court exercised its extraordinary jurisdiction to condone the delay. It also opined that appellate authorities should be empowered to condone delays caused by sufficient reasons.

4. The Court directed the Commissioner of Appeals to decide the appeal on merits in accordance with the law, subject to the satisfaction of pre-deposit conditions by the petitioner. The delay of 42 days in another connected writ petition was also condoned, with the appeal remitted back to the Commissioner for a decision on merits. The petitioners were instructed to appear before the authority on a specified date, with a mandate for the appeal to be resolved within three months.

5. The writ petitions were disposed of without costs, emphasizing the importance of compliance with procedural requirements and the exercise of discretionary powers by appellate authorities in condoning delays caused by valid reasons.