BANNARI AMMAN STEELS PVT LTD Vs. COMMISSIONER OF CENTRAL EXCISE
LAWS(KER)-2003-12-5
HIGH COURT OF KERALA
Decided on December 19,2003

Bannari Amman Steels Pvt Ltd Appellant
VERSUS
COMMISSIONER OF CENTRAL EXCISE Respondents

JUDGEMENT

- (1.) Petitioners are manufacturers of M.S. Ingots and non alleged steel. They are assessees under the Central Excise Act and the Rules and are clearing goods after payment of duty. Petitioners are presently aggrieved by the rejection of their appeal Nos.305/2003 CE and 306/2003 CE by the Commissioner of Central Excise (Appeals), Kochi by order dated 5.11.2003 (Ext. P13). The said appeals were rejected by the 1st respondent on the ground that appeals are belated. The 1st respondent has noted that the appeals were filed on 27.10.2003 while the petitioners have received the impugned orders on 9.4.2002. The petitioners had stated that these appeals were sent by post under certificate of posting on 22.6.2002 and therefore the appeals should be treated as having been filed within time. The petitioners had also enclosed a copy of the certificate of posting issued by the post office. The 1st respondent observed that there is no dispute about the fact that the petitioners had sent the memorandum of appeals against the impugned orders by post and through certificate of posting on 22.6.2002 and that the date on which the appeals were sent by post falls within the condonable period under S.35 of the Central Excise Act, 1944. However, the 1st respondent observed that when appeals are sent by post, the date on which the appeals are received in the office of the Commissioner of Central Excise (Appeals) is to be taken as the date for determining the period of limitation under S.35 and that in the instant case none of the two appeals were received earlier and that the petitioners had subsequently filed copies of these appeals on 27.10. 2003. The 1st respondent noted that the Bombay, Calcutta and the Gujarat High Courts, and the Tribunal have held that the date of filing of the appeals would be the date of receipt of the appeal papers in the office of the appellate authority. The 1st respondent thus took the view that the appeals were filed beyond the condonable period provided under S.35 of the Central Excise Act, 1944.
(2.) Learned counsel for the petitioners submitted that the petitioners have got a very strong case in the appeals and that the 1st respondent must be directed to consider the appeal on merits.
(3.) I have also heard the learned counsel representing the senior Central Government standing counsel for the Government of India appearing for respondents. The 1st respondent admittedly did not consider whether there are sufficient cause for condoning the delay in filing the appeals. According to the 1st respondent the delay is beyond the condonable period. In the circumstances, the question to be considered is as to whether the appeals can be treated as filed within time and / or as to whether the 1st respondent can condone the delay in filing the appeal beyond the period provided in S.35 of the C.E. Act.;


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