2018 (4) TMI 1498 - HC - Central Excise

High Court Restores Appeal, Emphasizes Discretion of Authorities to Condone Delays

The High Court allowed the appeal to be restored to the file of the Commissioner of Appeals for a decision on merits, emphasizing the discretion of ... Condonation of delay - extraordinary jurisdiction under Article 226 - power of Commissioner (Appeals) to condone delay under proviso to Section 35(1) of the Central Excise Act, 1944 - restoration of appeal for fresh adjudication on merits - pre-deposit condition for maintainability of appealCondonation of delay - extraordinary jurisdiction under Article 226 - power of Commissioner (Appeals) to condone delay under proviso to Section 35(1) of the Central Excise Act, 1944 - Whether the delay of 32 months in filing the appeal ought to be condoned. - HELD THAT: - The Court noted that the Commissioner (Appeals) is statutorily empowered to condone delay only within the further period of thirty days under the proviso to Section 35(1) and that the Commissioner considered himself without power to condone delay beyond that limit. However, exercising its extraordinary jurisdiction under Article 226 the High Court held that the substantial delay of 32 months in filing the appeal deserved to be condoned in the circumstances of the case. The Court observed that where an authority acts without jurisdiction or there is a failure of justice, interference under Article 226 is permissible and accordingly condoned the delay. The Court also remarked that appellate authorities ought to have discretion to condone delays occasioned by sufficient cause, although that observation did not alter the statutory limit itself. [Paras 7]Delay of 32 months in filing the appeal is condoned by the High Court under Article 226.Restoration of appeal for fresh adjudication on merits - pre-deposit condition for maintainability of appeal - Whether the appeal should be restored to the file of the Commissioner (Appeals) and be decided on merits. - HELD THAT: - Having condoned the delay, the Court restored the appeal to the file of the Commissioner (Appeals) with a direction that the appeal be decided on merits in accordance with law. The Court made this restoration subject to the appellate authority being satisfied that the required pre-deposit conditions for maintainability of the appeal have been complied with by the petitioner. The petitioner was directed to appear before the Commissioner (Appeals) on the specified date and the appellate authority was directed to decide the appeal within three months thereafter. [Paras 9, 10]Appeal restored to the file of the Commissioner (Appeals) for decision on merits, subject to satisfaction of pre-deposit conditions; appeal to be heard on the stated date and decided within three months.Final Conclusion: The Court condoned the delay in filing the appeal and restored the appeal relating to April, 2005 to March, 2006 to the Commissioner (Appeals) for adjudication on merits, subject to satisfaction of pre-deposit conditions, with directions for expeditious disposal within three months. Issues:1. Delay in filing appeal before the Commissioner of Appeals.2. Power of the Commissioner of Appeals to condone delay.3. Jurisdiction of the High Court under Article 226 of the Constitution of India.4. Compliance with pre-deposit conditions for maintaining the appeal.Issue 1: Delay in filing appeal before the Commissioner of AppealsThe petitioner, an assessee firm, filed a writ petition seeking to quash the order-in-original and order-in-appeal passed by the Respondents. The petitioner argued that there was no delay in filing the appeal after receiving the certified copy of the order-in-original. The Respondent Authority dismissed the appeal citing a delay of 32 months. The petitioner contended that the delay should be condoned due to the illegality in the adjudication order.Issue 2: Power of the Commissioner of Appeals to condone delayThe Commissioner of Appeals contended that they lacked the power to condone the delay beyond 90 days as per Section 35(1) of the Central Excise Act, 1944. The petitioner argued that the delay should be condoned by the High Court under Article 226 of the Constitution of India. The High Court, exercising its extraordinary jurisdiction, agreed that the delay deserved to be condoned and did so accordingly.Issue 3: Jurisdiction of the High Court under Article 226 of the Constitution of IndiaThe petitioner relied on a Division Bench decision to argue that the High Court could intervene if the authority passed the order without jurisdiction or in excess of jurisdiction, resulting in gross injustice. The High Court, in line with this argument, exercised its power under Article 226 to condone the delay and direct the Commissioner of Appeals to decide the appeal on merits.Issue 4: Compliance with pre-deposit conditions for maintaining the appealThe petitioner confirmed before the Court that the pre-deposit conditions for maintaining the appeal had been fulfilled. The High Court, after condoning the delay, directed the petitioner to appear before the Commissioner of Appeals and ensured that the appeal would be decided within three months from the specified date.In conclusion, the High Court disposed of the writ petition, allowing the appeal to be restored to the file of the Commissioner of Appeals for a decision on merits. The Court emphasized the importance of discretion for Appellate Authorities to condone delays caused by sufficient reasons, highlighting the need for a just and equitable approach in such matters.