2014 (1) TMI 1698 - HC - Central Excise

Validity of appeal - time barred - Held that - The criticism advanced by Mr. Bharadwaj that the statutory appeal was not preferred within the prescribed time deliberately is not altogether without any merit. The writ petitioner could have with the exercise of due diligence ascertained the order passed by the Joint Commissioner. It is also a fact that the appeal was preferred after 467 days whereas the statutory Appellate Authority has power to condone delay of only 30 days. Therefore the Appellate Authority could not have entertained the appeal in any event. The tendency to approach the High Court without exhausting the remedy before the statutory authorities cannot be encouraged. We however refrain from deciding the issue in this case finally because Mr. Khaitan has after taking instructions agreed to put in a further sum of Rs. 25, 00, 000/- within three months from date. A sum of Rs. 10, 00, 000/- has already been put in by his client. In the event a further sum of Rs. 25, 00, 000/- is deposited within three months from date the matter shall be reconsidered by the Joint Commissioner as per the order passed by the learned Trial Court. In the event such deposit is not made within the time stipulated herein the order passed by the learned Trial Court shall stand set aside.

Summary

Issues involved:
Appeal against judgment and order setting aside a previous order by Joint Commissioner of Excise and referring the matter back for rehearing.

Analysis:
The appeal in question was filed against a judgment and order dated 02.08.2013, where the Trial Court set aside the order dated 30.11.2005 passed by the Joint Commissioner of Excise. The Trial Court referred the matter back to the Joint Commissioner for rehearing, subject to the deposit of a sum of Rs. 10,00,000 by the writ petitioner. The appellant, represented by Mr. Bharadwaj, contended that the writ petitioner had the opportunity to appeal before the statutory authority but failed to do so within the prescribed time. The writ petitioner chose to invoke writ jurisdiction instead of approaching the Tribunal, which according to the appellant, was a mistake. On the other hand, Mr. Khaitan, representing the writ petitioner, argued that the copy of the order dated 30.11.2005 was not received by the client due to the mill's closure for an extended period. He further stated that approaching the Tribunal was not favorable due to certain circumstances, leading to the writ Court being approached. The Trial Court was satisfied with the writ petitioner's contentions and passed the order, which the appellant sought to set aside.

Upon hearing both sides, the Court acknowledged the criticism that the statutory appeal was not filed within the prescribed time, indicating a lack of due diligence on the part of the writ petitioner. The appeal was filed after 467 days, far exceeding the 30-day limit for condonation of delay by the Appellate Authority. The Court expressed disapproval of the tendency to approach the High Court without exhausting remedies before statutory authorities. However, a resolution was reached where the writ petitioner agreed to deposit an additional sum of Rs. 25,00,000 within three months, in addition to the initial Rs. 10,00,000 already deposited. The Court disposed of the appeal with an order stating that if the further sum was deposited within the stipulated time, the matter would be reconsidered by the Joint Commissioner as per the Trial Court's order. Failure to make the deposit within the specified period would result in the Trial Court's order being set aside.