2018 (3) TMI 454 - HC - Central Excise

Condonation of delay - Section 37C of the Central Excise Act, 1944 - whether service can be said to be valid or not and relevance of answer to this question, insofar as prayer for condonation of delay is concerned, arise for adjudication in this appeal? Held that - merely because proper steps were taken to complete service in terms of Section 37C, that by itself will not be sufficient to reject the prayer for condonation of delay. It will have impact only on length of delay. The questions of law formulated above squarely fall for consideration in present matter. The authority passing impugned order has not looked into relevant aspects having material bearing on answer to these questions. Thus, there is non-application of mind. Application restored on the file of the appellate authority for its fresh consideration preferably within period of six months from today.

Summary

Issues:
- Condonation of delay in filing an appeal against the order in original under Section 35G of the Central Excise Act.
- Validity of service and relevance to the prayer for condonation of delay.
- Proper application of mind by the appellate authority in refusing the prayer for condonation of delay.
- Compliance with the procedural requirements of Section 37C of the Central Excise Act.
- Non-application of mind by the authority passing the impugned order.

Analysis:

1. The appeal under Section 35G of the Central Excise Act questioned the refusal to condone a delay of 624 days in filing an appeal against the original order. The contention was raised regarding the procedural compliance under Section 37C of the Act, emphasizing the necessity to follow the prescribed stages for service.

2. The argument presented was that the steps taken for service did not adhere to the proper procedure outlined in Section 37C, indicating a deviation from the required process. This deviation was highlighted as a crucial point for consideration in determining the validity of the service and its impact on the prayer for condonation of delay.

3. The respondent's submission emphasized the due consideration of facts in the impugned order, asserting that no substantial question of law arose from the matter. However, the court found that the questions of the validity of service and its relevance to the delay condonation prayer were significant legal issues requiring adjudication.

4. The court noted that the mere completion of service under Section 37C did not automatically justify the rejection of the prayer for condonation of delay. The timing and effectiveness of the service, along with independent reasons hindering the appellant from approaching the appellate authority, were deemed crucial factors in determining the validity of the delay condonation request.

5. The court observed that the appellate authority failed to consider vital aspects, such as the proper procedure under Section 37C and the implications of non-compliance. This lack of application of mind led to the quashing of the impugned order and the restoration of the application for fresh consideration within a specified timeframe.

6. As a result of the decision to remand the matter back for reevaluation, the interim order granted earlier was continued, considering the payment made by the petitioner. The appeal was allowed and disposed of, highlighting the importance of procedural compliance and the necessity for a thorough assessment of all relevant legal aspects in such cases.