1/8 IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 23RD DAY OF OCTOBER 2017 BEFORE THE HON'BLE Dr.JUSTICE VINEET KOTHARI WRIT PETITION No.20282/2017 (EXCISE) BETWEEN:
Kivi Sansho Packaging Pvt. Ltd., A company registered under Companies Act, 1956.
Having its registered office at Plot No.7, Shivalli Industrial Area, Manipal-576 104.
Represented by its Managing Director, Mr. K. Kiran Shetty.
(By Mr.Manmohan P.N., Advocate) AND:
1. Joint Commissioner of Central Excise, Office of the Commissioner of Central Excise, VII Floor, Trade Centre, Bunts Hostel Road, Mangaluru-575 003.
2. The Commissioner (Appeals), Office of the Commissioner of Central Exercise (Appeals), No.S1 and S2, Vinaya Marga, Siddartha Nagar, Mysuru-570 001.
…Petitioner 2/8 (By Mr. Jeevan J. Neeralagi, Advocate) …Respondents This writ petition is filed under Articles 226 & 227 of the Constitution of India, praying to quash the order dated 08.02.2017 issued on 08.02.2017 passed by R-2 vide Annexure-E and consequently direct R-2 to consider appeal filed by the petitioner on merits.
This writ petition coming on for Final Hearing this day, the Court made the following:-
ORDER Mr.Manmohan P.N, Adv. for Petitioner Mr. Jeevan J. Neeralagi, Adv. for Respondents Learned counsel for the petitioner submits that the controversy involved in the present case is squarely covered by the decision in the case of Apotex Research Pvt. Ltd., Vs. Union of India reported in 2017(347) E.L.T.426(Kar.). The relevant extract of the said judgment is quoted below for ready reference:
“1. Writ Petition No.49560/2016 is filed assailing the impugned order Annexure- H dated 25.08.2016 passed by the respondent-Commissioner of Central Excise (Appeals-I), Bengaluru, rejecting the appeal 3/8 filed by the petitioner-assessee as barred by limitation of 184 days.
2. Learned counsel appearing for the Commissioner of Appeals submitted that the Commissioner has no power to condone the delay beyond the period of 30 days in terms of Section 35(1) of the Central Excise Act, 1944, which provides for a period of 60 days for filing an appeal and the proviso thereto empowers the Commissioner of Appeals to condone the delay, provided such an appeal is filed within 30 days after the said prescribed period of 60 days. Section 35(1) of the Act reads as under;
“35. Appeals to Commissioner (Appeals) – (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.”
3. Learned counsel for the petitioner- assessee has submitted that since the original order was communicated to the petitioner-Company on 17.12.2015, but was served only on the security personnel and not 4/8 on the authorized officer on the Company, the same was not delivered properly in the office and escaped the notice of the Company and the appeal could not be filed in time. However, this reason was not considered sufficient and more-so in view of the statutory limitation contained in the first proviso to Section 35(1) of the Act, the respondent- Commissioner of Appeals could not exercise any discretion in the matter.
4. However, he submitted that since the impugned adjudication order suffers from illegality, the delay deserves to be condoned by this Court in exercise of the extraordinary jurisdiction of Article 226 of the Constitution of India and the respondent-Commissioner of Appeals may be directed to decide the appeal on merits. He relied upon a Division Bench decision of this Court in the case of M/s.Practice Strategic Communications India Private Limited –versus- The Commissioner of Service Tax, in WP No.13917/2016 decided on 04.07.2016, wherein this Court has held as under;
“11. In view of the above referred decision of this Court, if this Court finds that the authority has passed the order without jurisdiction or has exercised the power in excess of the jurisdiction or by over-stepping or crossing the limit of jurisdiction or that there is failure of justice, or it has resulted in gross injustice, it would be a case falling under the exceptional category for exercising the power under Article 226 of the Constitution and to interfere with the order of the original authority or the appellate authority, as the case may be. In order to find out as to whether the case is fit 5/8 for exercising of the power under Article 226 of the Constitution, we may record that as per the decision of the Delhi High court, Rule 5, on the basis of which the original authority has passed the order for levying the tax is held to be ultra vires to Sec.67 of the Act. Further, the matter may fall in the realm of correct interpretation of Sec.67 as to whether the expenses reimbursed by the consumer to the service provider, can be included for the purpose of computation of the service tax or not. We do not propose to express any further view on the said aspects in view of the order which we may pass herein after, but suffice it to observe that in view of the decision of the Delhi High Court, there was a strong case on merits on the part of the petitioner to be considered by the taxing authority. Unfortunately the decision of the Delhi High Court though was specifically brought to the notice of the original authority in the reply to the show cause notice, in the impugned order of the original authority, there is no reference whatsoever. Under these circumstances, we find that the case may fall in the exceptional category for exercise of the power under Article 226 of the Constitution.
Xxx xxx Xxx xxx 15. After the aforesaid condition is complied with, the matter shall stand restored on the file of the Commissioner (Appeals) with a further direction that he shall consider the appeal on merits in the light of the observations made by this Court in the above judgment and after giving opportunity of hearing to all concerned.
16. It is made clear that the appeal shall be decided within a period of three months from the date of compliance of the condition of deposit of the amount and cost to the 6/8 respondent. It is also observed that the contentions of both the sides shall remain open to be considered before the appellate authority.
The petition is allowed in the above terms.
Rule made absolute.”
5. Learned counsel for the petitioner- assessee further submitted before this Court that the pre-deposit conditions for maintaining the said appeal have been complied with by the petitioner-assessee.
6. In view of the aforesaid, this Court is of the opinion that the reasons assigned by the petitioner-assessee appear to be of sufficient and the delay deserved to be condoned by the Commissioner of Appeals. However, in view of the statutory limit on his powers, this Court exercising its extraordinary jurisdiction is of the opinion that the said delay deserves to be condoned. It is hereby condoned.
7. Moreover this Court is of the opinion that discretion ought to have been given to the Appellate Authorities under the Act to condone such delays, if caused by sufficient reason. Be that as it may.
8. In the present case, the delay of 184 days is condoned and the appeal is restored to the file of the respondent-Commissioner of Appeals, with a direction to him to decide the appeal on merits in accordance with law, subject to his satisfaction of the required pre- deposit conditions for maintaining such appeal having been satisfied by the petitioner.
7/8 9. In view of the aforesaid, the delay of 42 days in the connected WP No.44467/2017 is also condoned and the appeal is remitted back to the Commissioner of Appeals, for decision on merits by him.
10. The petitioners-assessees may appear before the said authority in the first instance on 06.01.2017 and thereafter the appeal may be decided within a period of three months.
11. Writ Petitions are disposed of accordingly. No costs.”
2. The present impugned order passed by the respondent No.2-Commissioner of Central Excise (Appeals), Mysore, refusing to condone the delay in filing appeal beyond the prescribed period of 90 days, has resulted in the impugned dismissal of the appeal.
3. The learned counsel for the petitioner submitted that the delay was caused on account of illness of the concerned official of the petitioner-company and therefore, the said delay caused for sufficient reasons deserves to be condoned.
8/8 4. In view of the restriction on the respondent- authority by a statutory provision, even the genuine cases for condonation of delay cannot be considered and that is why such delays in filing the appeal have been condoned by this Court in some cases, one of which is quoted above.
5. Since the present case is also of the same nature, the present petition is also disposed of in same terms and condoning the delay, the appeal is restored to the said respondent-Commissioner of Central Excise (Appeals), Mysore, for deciding the appeal on merits, in accordance with law. The petitioner-assessee will however have to comply with the other conditions for maintaining such appeal and this order will cover only the limitation aspect only. No costs.
JS/BMC/- Sl.No.38 Sd/- JUDGE