2022 (9) TMI 434 - HC - Central Excise

Court grants condonation of 2864-day appeal delay due to counsel's passing & financial issues.

The Court condoned the significant delay of 2864 days in filing the appeal due to the appellant's counsel's passing and financial difficulties. It granted ... Condonation of delay in filing the appeal - time limitation - power of Court to direct the statutory appellate authority to entertain an appeal beyond the period of limitation prescribed under the Act - HELD THAT:- The learned Single Bench has noted the decision in the case of SINGH ENTERPRISES VERSUS COMMISSIONER OF C. EX., JAMSHEDPUR [2007 (12) TMI 11 - SUPREME COURT]. The aforementioned legal position is a settled legal position and the learned Single Judge was perfectly right in not granting relief sought for by the appellant. However, we are of the view, a party should not be left remediless. No doubt the conduct of the party needs to be considered, which can be given a liberal approach, more particularly, when the appellant had suffered an order in the hands of the appellate authority on the ground that the appeal was barred by time and before the learned Writ Court on the technical ground that the limitation for preferring an appeal cannot be extended. Since the Tribunal is the last fact finding forum in the hierarchy of authorities, the appellant can be granted liberty to file an appeal before the Tribunal subject to certain conditions. Application is allowed in part and the order passed by the learned Single Judge is modified with the direction directing to the appellant to pay 25% of the due demand of Central Excise within a period of six weeks from the date of receipt of the server copy of this order. Issues:1) Delay of 2864 days in filing the appeal2) Condonation of delay in filing the appeal3) Power of the Court to direct statutory appellate authority to entertain an appeal beyond the limitation period4) Granting liberty to file an appeal before the Tribunal subject to conditions5) Payment of 25% of the due demand of Central Excise within six weeks6) Filing an appeal before the Tribunal within fifteen days of payment7) Order not to be treated as a precedent in any other matterAnalysis:Issue 1: Delay of 2864 days in filing the appealThe appeal faced a significant delay of 2864 days in filing. The respondents opposed the condonation of delay, emphasizing the prolonged duration. However, the Court considered the circumstances, noting the passing of the appellant's counsel and financial difficulties faced by the appellant, leading to the delay. After evaluating the totality of the situation, the Court decided to condone the delay in filing the appeal.Issue 2: Condonation of delay in filing the appealThe Court examined the affidavit supporting the application for condonation of delay. The main contention was the demise of the appellant's counsel, which was deemed credible. Additionally, the assessment order demanding Central Excise dues remained uncollected due to the appellant's financial challenges. Considering these factors, the Court granted the condonation of delay, emphasizing the ends of justice.Issue 3: Power of the Court to direct statutory appellate authorityThe appeal was against the dismissal of a writ petition on the grounds of the Court lacking the power to direct the statutory appellate authority to entertain an appeal beyond the prescribed limitation period. While acknowledging the settled legal position, the Court believed that parties should not be left without remedies. It directed the appellant to approach the Custom Excise Service Appellate Tribunal, allowing an appellate remedy with certain conditions.Issue 4: Granting liberty to file an appeal before the TribunalThe Court partially allowed the appeal and modified the earlier order. It directed the appellant to pay 25% of the due demand within six weeks. Upon payment, the appellant could file a statutory appeal before the Tribunal with an application for condonation of delay. The Tribunal was advised to adopt a liberal approach in considering the application to ensure a decision based on merits and in accordance with the law.Issue 5: Payment of 25% of the due demand within six weeksTo protect the revenue's interest and ensure a substantive decision on the matter, the Court instructed the appellant to pay 25% of the Central Excise demand within six weeks. Failure to comply would impact the appellant's ability to file an appeal before the Tribunal.Issue 6: Filing an appeal before the Tribunal within fifteen days of paymentFollowing the payment, the appellant was required to file an appeal before the Tribunal within fifteen days. The Court clarified that this direction was specific to the circumstances of the case, particularly considering the demise of the appellant's advocate, and should not serve as a precedent in other cases.Issue 7: Order not to be treated as a precedentThe Court explicitly stated that the directions provided in this case should not be considered as a precedent in any other matter. It emphasized the unique circumstances surrounding the case, including the unfortunate passing of the appellant's legal representative.This detailed analysis encapsulates the key issues addressed in the judgment, highlighting the Court's considerations and decisions regarding the delay in filing the appeal, power of the Court to direct the appellate authority, and the conditions imposed for filing an appeal before the Tribunal.