2021 (7) TMI 1031 - HC - Central Excise

Court overturns Tribunal's dismissal due to delay, emphasizes rights preservation, directs appeals to proceed

KKSK LEATHER PROCESSORS PVT. LTD. Versus CESTAT, CHENNAI

The Court set aside the impugned orders of the Customs, Excise and Service Tax Appellate Tribunal, which dismissed the appeal due to a delay of 107 days. ... Condonation of delay of 107 days in filing the appeal - sufficient explanation for condonation of delay not provided - resignation of the concerned official dealing with excise matters - availability of alternate remedy by way of appeal - Section 35G of the Central Excise Act, 1944 - HELD THAT:- The delay of 107 days is not inordinate for the 1st respondent/Appellate Authority to dismiss the appeal as the precious rights to agitate the issue arising out of the order passed by the 2nd respondent/Commissioner of Customs and Central Excise, Salem cannot be denied to the petitioner unless there is an inordinate delay which has not been answered properly and condonation of the delay will cause prejudice to the interests of the Revenue. The alternate submission of the Learned Counsel for the respondents that the remedy lies by way of an appeal before this Court against the order of the 1st respondent/Appellate Authority under Section 35G of the Central Excise Act, 1944 also cannot be countenanced as the jurisdiction of the Court under Section 35G of Central Excise Act, 1944 can be invoked only where there is substantial question of law. The impugned orders is set aside with a consequential direction to the 1st respondent/Appellate Authority to number the appeals and dispose the same on merits in accordance with law - petition allowed. Issues: Challenge to impugned orders of Customs, Excise and Service Tax Appellate Tribunal regarding delay in filing appeal; Consideration of delay period; Applicability of alternate remedies; Jurisdiction under Section 35G of Central Excise Act, 1944.Analysis:1. The petitioner contested the impugned orders dated 29-7-2010 by the Customs, Excise and Service Tax Appellate Tribunal, which dismissed the application for condonation of delay in filing the appeal. The Tribunal's reasoning for dismissal was based on the insufficiency of the explanation provided by the petitioner, emphasizing that being a private limited company, the resignation of the official dealing with excise matters did not justify the delay. Consequently, both appeals were dismissed as time-barred.2. The petitioner relied on a previous decision of the Court to argue that a delay of 106 days should not be considered inordinate, especially when there was no allegation of purposeful delay. The Court in the cited case had opined that such delays were not intended to prolong proceedings. This argument formed a crucial part of the petitioner's case against the dismissal.3. The respondents, represented by their Counsel, highlighted that the petitioner had alternative remedies available, such as appealing before the Court and through Civil Miscellaneous Appeal. They contended that due to these options, the writ petitions should be dismissed. This raised the issue of whether the availability of alternate remedies affected the validity of the petitioner's challenge.4. Upon considering the arguments from both sides, the Court found that a delay of 107 days was not unreasonable, especially when it came to preserving the petitioner's rights to challenge the order of the Commissioner of Customs and Central Excise. The Court emphasized that unless there was an inordinate delay causing prejudice to the Revenue, the appeal should not be dismissed. Additionally, the Court rejected the argument regarding the remedy of appeal before the Court under Section 35G of the Central Excise Act, 1944, stating that such jurisdiction could only be invoked in cases involving substantial questions of law.5. Consequently, the Court set aside the impugned orders and directed the Appellate Authority to proceed with numbering and disposing of the appeals on their merits in accordance with the law. The Writ Petitions were allowed without costs, and connected miscellaneous petitions were closed, concluding the matter before the Court.