Full Judgment Text
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CASE NO.:
Appeal (civil) 5949 of 2007
PETITIONER:
M/s Singh Enterprises
RESPONDENT:
Commissioner of Central Excise,Jamshedpur and Ors.
DATE OF JUDGMENT: 14/12/2007
BENCH:
Dr. ARIJIT PASAYAT & AFTAB ALAM
JUDGMENT:
J U D G M E N T
(Arising out of SLP (C) No.4720 of 2006)
Dr. ARIJIT PASAYAT, J.
1. Leave granted.
2. Challenge in this appeal is to the order passed by a
Division Bench of the Jharkhand High Court dismissing the
Writ Petition filed by the appellant. Before the High Court
appellant had challenged the order passed by the
Commissioner (Appeals), Central Excise and Service Tax,
Ranchi dismissing the appeal filed by the appellant under
Section 35 of the Central Excise Act, 1944 (in short the \021Act\022).
The said order was challenged before the High Court by filing a
Writ Petition. The Commissioner had dismissed the appeal
only on the ground that it was filed after 21 months of the
date of service of the original order and the appellate authority
did not have power to condone the delay beyond the period of
30 days from the date of expiry of period of 60 days prescribed
for filing the statutory appeal.
3. The Division Bench noted that since the Commissioner
had no power of condonation beyond the statutorily prescribed
period, therefore, the writ petition was without merit. Before
the High Court reliance was placed on a decision of this Court
in I.T.C. Ltd. v. Union of India (1998 (8) SCC 610) to contend
that the High Court had the power to condone the delay. This
stand was not accepted by the High Court.
4. In support of the appeal, learned counsel for the
appellant submitted that even if it is conceded for the sake of
argument that the Commissioner had no power to condone the
delay, yet the High Court in exercise of power conferred under
Article 226 of the Constitution of India, 1950 (in short the
\021Constitution\022) can condone the delay. It is stated that the
power in this regard is untrammeled by any statutory
provision.
5. Learned counsel for the respondents on the other hand
supported the orders of the Commissioner and the High Court.
6. At this juncture, it is relevant to take note of Section 35
of the Act which reads as follows:
\02335. APPEALS TO COMMISSIONER
(APPEALS).
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(1) Any person aggrieved by any decision or
order passed under this Act by a Central
Excise Officer, lower in rank than a
Commissioner of Central Excise, may appeal to
the Commissioner of Central Excise (Appeals)
[hereafter in this Chapter referred to as the
Commissioner (Appeals)] within sixty days
from the date of the communication to him of
such decision or order :
Provided that the Commissioner (Appeals)
may, if he is satisfied that the appellant was
prevented by sufficient cause from presenting
the appeal within the aforesaid period of sixty
days, allow it to be presented within a further
period of thirty days.
(2) Every appeal under this section shall be in
the prescribed form and shall be verified in the
prescribed manner.\024
7. It is to be noted that the periods \023sixty days\024 and \023thirty
days\024 have been substituted for \023within three months\024 and
\023three months\024 by Act 14 of 2001, with effect from 11.5.2001.
8. The Commissioner of Central Excise (Appeals) as also the
Tribunal being creatures of Statute are vested with jurisdiction
to condone the delay beyond the permissible period provided
under the Statute. The period upto which the prayer for
condonation can be accepted is statutorily provided. It was
submitted that the logic of Section 5 of the Indian Limitation
Act, 1963 (in short the \021Limitation Act\022) can be availed for
condonation of delay. The first proviso to Section 35 makes the
position clear that the appeal has to be preferred within three
months from the date of communication to him of the decision
or order. However, if the Commissioner is satisfied that the
appellant was prevented by sufficient cause from presenting
the appeal within the aforesaid period of 60 days, he can allow
it to be presented within a further period of 30 days. In other
words, this clearly shows that the appeal has to be filed within
60 days but in terms of the proviso further 30 days time can
be granted by the appellate authority to entertain the appeal.
The proviso to sub-section (1) of Section 35 makes the position
crystal clear that the appellate authority has no power to allow
the appeal to be presented beyond the period of 30 days. The
language used makes the position clear that the legislature
intended the appellate authority to entertain the appeal by
condoning delay only upto 30 days after the expiry of 60 days
which is the normal period for preferring appeal. Therefore,
there is complete exclusion of Section 5 of the Limitation Act.
The Commissioner and the High Court were therefore justified
in holding that there was no power to condone the delay after
the expiry of 30 days period.
9. Learned counsel for the appellant has emphasized on
certain decisions, more particularly, I.T.C.\022s case (supra) to
contend that the High Court and this Court in appropriate
cases condoned the delay on sufficient cause being shown.
10. Sufficient cause is an expression which is found in
various statutes. It essentially means as adequate or enough.
There cannot be any straitjacket formula for accepting or
rejecting the explanation furnished for delay caused in taking
steps. In the instant case, the explanation offered for the
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abnormal delay of nearly 20 months is that the appellant
concern was practically closed after 1998 and it was only
opened for some short period. From the application for
condonation of delay, it appears that the appellant has
categorically accepted that on receipt of order the same was
immediately handed over to the consultant for filing an appeal.
If that is so, the plea that because of lack of experience in
business there was delay does not stand to be reason. I.T.C.\022s
case (supra) was rendered taking note of the peculiar
background facts of the case. In that case there was no law
declared by this Court that even though the Statute prescribed
a particular period of limitation, this Court can direct
condonation. That would render a specific provision providing
for limitation rather otiose. In any event, the causes shown for
condonation have no acceptable value. In that view of the
matter, the appeal deserves to be dismissed which we direct.
There will be no order as to costs.