2024 (9) TMI 458 - HC - Central Excise

Dismissal of appeal on the ground that there is no justification for the delay - rejection of plea for refund - HELD THAT - A detailed affidavit setting out reasons for seeking condonation was filed before the CESTAT. The Tribunal however declined to condone the delay dismissing the appeal in limine, as against which the present appeal is filed. On a perusal of the reasons ascribed to the delay as well as for the reason that the petitioner is a Cooperative Society, which agitates the grant of refund of Rs. 32.00 lakhs (approx.), this Writ Petition is allowed setting aside the impugned order of the CESTAT and restoring the matter to the file of the CESTAT. Since the appeal itself is of the year 2007, the date of hearing of the appeal is fixed as 09.09.2024 and the CESTAT is requested to take the appeal in E/Appeal No.394 of 2007 for hearing on that date. Petition allowed.

Summary

Issues:
1. Maintainability of Writ Petition challenging CESTAT order
2. Delay in filing appeal before CESTAT
3. Refund of duty paid by Cooperative Society
4. Condonation of delay in filing appeal before CESTAT

Analysis:
The judgment involves the maintainability of a Writ Petition challenging a CESTAT order. The Court initially considers a preliminary objection on maintainability citing a previous decision. The Court notes that the Central Excise Act provides for an appellate hierarchy and any CESTAT order is generally appealable before the Division Bench of the High Court. However, a subsequent judgment by a different judge allows for exceptional cases where a Writ Petition may be maintainable before the Division Bench.

The case also deals with a delay in filing an appeal before CESTAT. The petitioner, a Cooperative Society, sought a refund of duty paid for a period when the liability for such duty had ceased. Despite filing a detailed affidavit explaining the delay, CESTAT declined to condone the delay, leading to the present appeal.

Regarding the refund of duty paid by the Cooperative Society, the Court notes that the petitioner continued to pay duty even after the liability ceased and sought a refund. The petitioner modified its claim before the Appellate Commissioner, but the appeal was rejected, leading to the appeal before CESTAT.

The issue of condonation of delay in filing the appeal before CESTAT is crucial in this judgment. The Court, upon reviewing the reasons for the delay and considering the petitioner's status as a Cooperative Society seeking a substantial refund, allows the Writ Petition, setting aside the CESTAT order and restoring the matter for further consideration.

In conclusion, the Court allows the Writ Petition, setting a date for the appeal to be heard and requesting CESTAT to take up the matter. The judgment grants relief to the petitioner and emphasizes the importance of considering exceptional circumstances in matters of delay and refund claims.