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2015 (3) TMI 627 - ALLAHABAD HIGH COURT

2015 (3) TMI 627 - ALLAHABAD HIGH COURT - TMI - Power of Commissioner (A) to condone the delay - Wrong availment of CENVAT credit - credit on "Rough Forged" and 'Rail' - Bar of limitation - Commissioner held hat appeal was filed not only beyond period of limitation but also beyond period permissible to be condoned under statute and therefore, it had no power to condone delay beyond maximum period prescribed - Whether dismissal of appeal by Commissioner (A) on the ground of limitation was .....

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e a particular period of limitation, High Court or Supreme Court can direct for condonation. Court categorically said that all such Courts would render statutory provisions providing for limitation rather otiose. - since admittedly the appellant has not come in a writ petition, an appeal under Section 35G of Act, 1944 has come up before this Court. Even Uttrakhand High Court dismissed appeal, preferred by party [2014 (3) TMI 419 - UTTARAKHAND HIGH COURT], holding that delay was not condonable. S .....

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Singh, S.S.C. ORDER (Delivered by Hon'ble Sudhir Agarwal, J.) 1. Heard Sri Bidhan Chandra Rai, learned counsel for appellant and Sri Ashok Singh, learned counsel appearing for respondent. 2. This is an appeal under Section 35G of Central Excise Act, 1944 (hereinafter referred to as 'Act, 1944'), arising from order dated 22nd August, 2014, passed by Customs, Excise and Service Tax Appellate Tribunal (hereinafter referred to as 'Tribunal'), in Central Excise Appeal No. E/52390/ .....

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hapes and section of iron and non- alloy steel, falling under Chapter 72 of Central Excise Tarrif Act, 1985 (hereinafter referred as "Act, 1985"). Appellant used "Rough Forged" and 'Rail' in rolling mill for producing hot re-rolled products. It availed CENVAT credit on these two items, claiming that same are classified under Chapter 72071910 and 73021010 respectively of Act, 1985 as "Capital Goods". 4. Appellant closed manufacturing activities in January, 20 .....

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CENVAT credit on "Rough Forged" and 'Rail' and should show cuase as to why central excise duty of ₹ 14,15,057/- be not demanded from it. Notice also proposed interest under Section 11AB and penalty under Section 11AC of Act, 1944 read with Rule 15(2) of CENVAT Credit Rules, 2004 (hereinafter referred to as "Rules, 2004"). Since appellant's unit was closed and staff looking after excise work had left the job and also its Managing Director, Rajeev Agarwal (now .....

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alty of the same amount of ₹ 14,15,057/- under Rule 15(2) of Rules, 2004 read with Section 11AC of Act, 1944, was imposed. 6. Appellant preferred an appeal under Section 35 of Act, 1944, before Commissioner (Appeals), vide memo of appeal dated 13th July, 2012, wherein it was admitted that copy of order dated 24th June, 2011, was received by appellant in the month of July, 2011, but appeal could not be filed within the period of limitation of 60 days, due to reason that unit was closed and .....

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of communication of order dated 24.06.2011, as 7th May, 2012. Commissioner (A), considered delay condonation application and found that appeal was filed not only beyond period of limitation but also beyond period permissible to be condoned under statute and therefore, it had no power to condone delay beyond maximum period prescribed. It dismissed the application seeking condonation of delay on the ground that appeal has been filed after maximum period of limitation, hence power for condonation .....

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he could not dispute that since Tribunal has not considered the matter on merits, the only question which has arisen in this appeal is "Whether dismissal of appeal by Commissioner (A) on the ground of limitation was justified or not?" Thus the questions relating to merits, have not arisen in this appeal. We accordingly formulate the following substantial questions of law which have arisen in this appeal :- 1. Whether Commissioner has rightly held that condonation of delay is not permis .....

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de by this judgment. 11. Learned counsel for parties have addressed this Court on both aforesaid substantial questions of law at length and besides record, we also looked into relevant statutory provisions and authorities cited at the bar and also as may be applicable on the questions up for consideration before this Court. 12. Appeal before Commissioner is admissible under Section 35(1) of Act, 1944, which reads as under :- "35. Appeals to [Commissioner (Appeals)].- (1) Any person aggrieve .....

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thin the aforesaid period of sixty days, allow it to be presented within a further period of thirty days.]" 13. Period of limitation prescribed under Section 35(1) is 60 days from the date of communication of order, whereagainst appeal is preferred. Proviso to Section 35(1) of Act, 1944 confers power upon appellate authority i.e. Commissioner (A) to condone delay, if period is higher than 60 days, but within further period of 30 days. In other words, period of limitation including the perio .....

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C 353], the issue which is up for consideration in this appeal, specifically came to be considered before Apex Court. Therein appeal of assessee was filed after delay of 21 months' from the date of communication of order under appeal. Commissioner, rejected the same on the ground that it was beyond period of 30 days from the date of expiry of period of limitation of 60 days prescribed for filing appeal, therefore, delay was beyond his authority of condonation. This order was challenged in wr .....

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urt had power to condone delay. Court held in paragraph no. 4 of judgment that Section 35, as it stands after its amendment by Act, 2001, w.e.f. 11th May, 2001, prescribes period of limitation of 60 days and further period of 30 days' delay which can be condoned. Beyond that appellate authority has no power of condonation of delay. The Court said :- "The proviso to sub-section (1) of Section 35 makes the position crystal clear that the appellate authority has no power to allow the appea .....

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ays period." (emphasis added) 16. The above judgment clearly shows that Apex Court also held that Section 5 of Limitation Act is completely excluded in its application to Section 35 of Act, 1944. There the Court proceeded to consider argument that in writ jurisdiction, delay beyond 90 days, could have been condoned by High Court. Firstly, the Court considered explanation and found unacceptable. Having said so, Court also held that judgment in I.T.C.'s Case (Supra) has not rendered any l .....

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od of limitation, this Court can direct condonation. That would render a specific provision providing for limitation rather otiose." 17. Aforesaid decision has been referred and followed in Commissioner Customs and Central Excise, NOIDA Vs. Punjab Fibres Ltd., NOIDA [2008 (3) SCC 73], thereon, similar question had arisen with regard to Section 35H of Act, 1944, but the provisions being pari-materia, Court held, when Legislature has clear intention of not condoning delay or not providing lar .....

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ention and Control of Pollution) Cess Rules, 1978 (hereinafter referred to as 'Rules, 1978'), where period of limitation for filing appeal was 30 days' which could be condoned up to 45 days. Appeals filed beyond that period were rejected on the ground that there was no power of condonation of delay beyond maximum period prescribed in the statute. Therein an argument was advanced that delay could have been condoned as period of limitation is procedural law and secondly that in writ ju .....

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e to give effect to carrying out the purpose of such Act, if period of limitation is provided the same has been held to be mandatory and once such period has expired, the Court is not competent to extend limitation and thereby nullify the otherwise provisions(s) under the statute......." 20. A similar view was expressed earlier also by a Division Bench of this Court in U.P. State Sugar Corporation Ltd. Vs. U.P. Pollution Control Board, Lucknow and Others [1992 (10) LCD 497]. 21. Sri B.C. Ra .....

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er maximum period of limitation was rejected on the ground that delay beyond 90 days was not condonable by appellate authority. Order of appellate authority was confirmed by Tribunal, whereagainst assessee preferred appeal before High Court, but High Court also upheld the view taken by Tribunal and dismissed the appeal. 22. It appears that simultaneously challenging order of Central Excise Authority, with regard to recovery which was subject to appeal, a writ petition was also filed by M/s Himgi .....

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even if, such order could have not been challenged in appeal, being barred by time. Observations made by Nainital High Court in paragraph no. 4 of judgment in M/s Himgiri Ispat (P) Ltd. (supra), in this regard, reads as under :- ".................... 4. While right to prefer Appeal is statutory, the same can be exercised to the extent Statute has granted. While a time limit has been fixed for preferring the Appeal, upon expiry of that period, the right to prefer Appeal stands extinguished. .....

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e conferring the right under Article 226 of the Constitution, did not confer such right by any limitation whatsoever. In those circumstances, there cannot be a contention that the writ petition is not maintainable because it is belated. If the action complained of its nonest from the day one, the same can be challenged even after 100 years. The question is, whether the action complained of in the writ petition is nonest or not? The Central Excise Act provides the mechanism of recovery of excise .....

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