Delay beyond the statutory power cannot be condoned.

PJ/Case Law /2013-14/2323

Case:- VIKRAM KNITTEX PVT. LTD. VS UNION OF INDIA

Citation:- 2014(304)E.L.T 344(Guj.)

Brief facts:- The facts of the case, in brief, were the petitioner is a company registered under the Companies Act is a government recognized export house. The petitioner is engaged in exporting textile products as a merchant-exporter. It is the case of the petitioner that 10 consignments of processed fabrics were removed for export from the factory of one M/s Gujarat Polyfilms by the petitioner as a merchant-exporter for which the procedure as laid down in the rules was followed. M/s Gujarat Polyfilms as manufacturer of the fabric had paid excise duty of Rs. 8.07 lacs (rounded off) on such fabrics and cenvat credit of duty paid on inputs like yarn was utilized for discharging its duty liability. The petitioner company as a merchant exporter lodged rebate claims upon receiving documents of proof of export. These debate claims were not decided by the revenue authorities and show cause notice was issued on 25-1-2011 alleging that why rebate should not be rejected and penalty should not be imposed on M/s Gujarat polyfilms . The Deputy Commissioner of Central Excise passed order dated 28-6-2011 rejecting the rebate claim of the petitioner on the ground that the permission for sending yarns for weaving on job work basis was allowed to M/s Gujarat polyfilms and further permission for sending unprocessed fabrics to the job workers for dyeing and printing before that and therefore, cenvat credit taken on inputs used for such fabrics was not admissible. The Deputy Commissioner also imposed penalty of Rs 5000/- on M/s Gujarat polyfilms

M/s Gujarat polyfilms filed appeal before the Commissioner (Appeals) on 18-7-2011 raising several grounds. No appeal was filed by the present petitioner. According to the petitioner, under wrong impression that the appeal on behalf of the petitioner company has also been filed by the legal consultant no steps were taken independently for challenging the said order of the Deputy Commissioner.

On 25-9-2010, the appeal was taken up for hearing by the commissioner (appeals). According to the petitioner, at that stage it was realized that no appeal was filed on behalf of the petitioner though it was required. On 27-9-2012, therefore the petitioner company filed an appeal with a request for condonation of delay.
On 29-11-2012, the Commissioner (appeals) passed two separate orders. The appeal of M/s Gujarat Polyfilms was allowed setting aside the order of penalty. Appeal of the petitioner was rejected as time-barred and the delay being such that the commissioner had no power to condone. At that stage, the petitioner approached this court by filing the present petition.

Appellant’s contention:- From the prayers, it can be seen that though the petitioner has challenged the appellate Commissioner’s order rejecting the appeal of petitioner on the ground of delay, a separate prayer has also been made challenging the very order of adjudication passed by the Deputy Commissioner. Learned counsel for the petitioner vehemently contented that there was bona fide error on the part of the consultant in not filing two separate appeals though technically needed. All along, the intention of the petitioner was to question the order of the Deputy Commissioner rejecting the rebate claims. Mere lapse of presentation of appeal should not result into injustice because of operation of statue. He, therefore, submitted that this Court should examine the legality of the order-in-original itself exercising writ jurisdiction. In this context, he relied on certain orders passed by this court to which we would refer to at a later stage.

Respondent’s contentions:- Learned counsel Shri Bhatt for the department opposed the petition contending that the appeal was hopelessly barred by limitation. The Commissioner rightly rejected the same since the statute did not permit condonation of delay beyond a period of 30 days after the limitation of 60 days prescribed. Even otherwise, the order-in-original is just and proper.

Reasoning of judgment:- Undisputedly, the statue provides for the limitation of 60 days in preferring appeal before the Commissioner under section 35 of the Central Excise Act,1944. Proviso to section 35 provides that the Commissioner (Appeals) may if it is satisfied that the appellant was prevented by the sufficient cause from the presenting the appeal within the said period of 60 days, allow it to be presented within a further period of 30 days. Thus, the statue in addition to providing limitation of 60 days in preferring an appeal before the commissioner, gives discretion to him to condone delay in preferring te appeal on sufficient ground upto a further period of 30 days. The statue thus does not permit condonation of delay beyond the said period. Such statutory provisions have come up for consideration before various courts including the Supreme Court on various occasions. We may recall that the adjudicating authority passed the order-in-original on 28-6-2011 and the appeal of the petitioner came to he filed only on 27-9-2012.
In view of the above findings, the appeal filed is rejected.

Decision:- Petition dismissed.

Comment:- The analogy drawn from the case is that delay beyond the period as specified in the statutory provision is not permissible and cannot be entertained for any cause. This view has also been confirmed by the Apex Court and so the petition seeking relief beyond the statutory provision was dismissed.

Prepared by:- Lovina Surana

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PJ/Case Law /2013-14/2323

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