2021 (8) TMI 551 - HC - Central Excise

Maintainability of appeal - non-compliance with the condition of pre-deposit - also there is a delay in filing the appeal - HELD THAT - This Court is of the considered opinion that the appeal filed by the aggrieved persons have to be decided in merits on all circumstances. If the reasons stated for the delay is acceptable, then the Courts may consider the same and condone the delay by providing opportunity to the aggrieved persons and adjudicate the issues on merits and in accordance with law. In the present case, pre-deposit was not made by the petitioner, which is mandatory for entertaining the appeal under the provisions of Central Excise Act due to the fact that the Bank Accounts of the petitioner were frozen and further the appeal was filed belatedly in view of the pendency of the Writ Appeal before the Division Bench of this Hon'ble Court. The petitioner is directed to comply with the condition of pre-deposit as contemplated under the Central Excise Act, within a period of four weeks from the date of receipt of a copy of this order and represent the appeal to the 1st respondent - Petition allowed.

Summary

Issues:
Challenge to order in appeal due to non-compliance with pre-deposit condition and delay in filing the appeal.

Analysis:
The petitioner challenged the order in appeal passed by the 1st respondent, contending that the appeal against the Order-in-Original was dismissed for failure to comply with the mandatory pre-deposit under the Central Excise Act. The petitioner, now willing to pay the pre-deposit, had earlier refrained due to frozen bank accounts. However, the impugned order rejected the appeal not only for non-compliance with the pre-deposit but also for delay in filing the appeal.

The impugned order highlighted that the appeal was filed over a year after receiving the Order-in-Original, exceeding the prescribed time limit for filing. The appellant sought condonation of delay, stating it was due to approval from higher authorities. The Commissioner (Appeals) can condone delays beyond two months for a further month if satisfied with the reasons. However, the appeal in this case was filed well beyond the permissible period, breaching Section 85(3A) of the Finance Act, 1994.

The court emphasized that appeals by aggrieved parties must be decided on merits under all circumstances. Acceptable reasons for delay should be considered to provide a fair opportunity for adjudication. In this case, the petitioner failed to make the mandatory pre-deposit due to frozen bank accounts and filed the appeal belatedly during the pendency of a Writ Appeal before the Division Bench of the High Court.

Consequently, the court quashed the impugned order and directed the petitioner to comply with the pre-deposit condition within four weeks. Upon compliance, the 1st respondent was instructed to entertain and dispose of the appeal on merits, ensuring due process for all parties involved. The Writ Petition was allowed without costs, and the connected Miscellaneous Petition was closed.