Dhirubhai Naranbhai Patel, J. - (1.) INSTANT writ petition has been preferred against the order dated 17th October, 2014 passed by the Commissioner (Appeals) in Appeal Nos. 107 to 114/RAN/2014 whereby, the appeals preferred by the appellants, including this petitioner, have been dismissed mainly on the ground that these appeals have been preferred beyond the period of condonable delay.
(2.) COUNSEL for the petitioner submitted that petitioner has filed a writ petition (T) No. 7713 of 2013 on 17th December, 2013 before this Court against the order in original dated 31st January, 2013 passed by Additional Commissioner of Central Excise, Ranchi, which was dismissed on 25th March, 2014. Previously another party had preferred a writ petition in which intervention application was preferred by this petitioner in writ petition (T) No. 1263 of 2013 along with other writ petitioners. These batch of writ petitions were disposed of by this Court vide order dated 3rd September, 2013 and, therefore, appeals were preferred against the order in original passed by Additional Commissioner, Central Excise, Ranchi by the petitioners claiming benefit of Section 14 of the Limitation Act of 1963, to exclude the time consumed in disposal of the writ petition before this Court in computation of the delay. Counsel for the petitioner has relied upon the decision rendered by the Hon'ble Supreme Court reported in : (2011) 15 SCC Page No. 30 Ketan V. Parekh Vs. Special Director, Directorate of Enforcement and another as also relied upon the decision rendered by Hon'ble Supreme Court reported in : [2011] 1 SCC 117 Coal India Limited Vs. Ujjal Transport Agency. Counsel for the petitioner has also relied upon the decision of Hon'ble Gujrat High Court reported in : 2012 (286) E.L.T. 676 (Guj.) Adani Enterprises Ltd. Vs. Union of India. On the basis of these decisions it is submitted that Section 14(2) of the Limitation Act 1963 is applicable for condonation of delay by the Commissioner (Appeals). This aspect of the matter has not been properly appreciated by the Commissioner (Appeals) and, therefore, this petition has been preferred. It has been submitted that delay may be condoned which is approximately of 15 months and the matter may be remanded to the Commissioner (Appeals) for its decision on merits. Counsel for the respondents has submitted that no error has been committed by Commissioner(Appeals) while dismissing the appeals preferred by the petitioners of Appeal Nos. 107 to 114/RAN/2014 as delay was not condonable under section 85(3A) of the Finance Act, 1994. It has further been submitted by counsel appearing on behalf of Union of India that it has specifically been mentioned in the order in original passed by Additional Commissioner Central Excise, Ranchi dated 31st January, 2013 that demand of service tax has been affirmed against this petitioner as well as interest under section 75 of the Finance Act, 1994 has also been affirmed. There was violation of certain circulars and rules of the Finance Act, 1994. Penalty was also affirmed under Section 77 of the Finance Act, 1994. Thus, there was no ambiguity at all. So far as liability of this petitioner is concerned in the order in original passed by Additional Commissioner, Central Excise, Ranchi this petitioner could have prefer appeal within 60 days+30 days maximum otherwise, if the appeal is preferred beyond ninety days the delay is not condonable in view of the decision rendered by Hon'ble Supreme Court reported in : [2008] 3 SCC 70 Singh Enterprises Versus Commissioner of Central Excise Jamshedpur and others. Counsel for the respondents has also relied upon decisions rendered by Hon'ble Bombay High Court in writ petition No. 1830 of 2013 with writ petition (Civil) no. 3419 of 2014 decided on 24th December, 2014. It is further submitted by learned counsel for the respondent -Union of India that though order in original was passed on 31st January, 2013 which clearly affirms the demand notice issued upon this petitioner including interest and penalty, this petitioner preferred a writ petition before this Court being W.P.(T) No. 7713 of 2013 on 17th December, 2013 which was dismissed vide order dated 25th March, 2014. Thus, no benefit of Section 14(2) of the Limitation Act, 1963 can be given to this petitioner. As such, no error has been committed by the Commissioner (Appeals) in not condoning the delay. Even otherwise also, as submitted by the counsel for the respondent -Union of India that prima -facie Section 14 of the Limitation Act 1963 is not applicable because there was no want of jurisdiction where the writ petition was preferred. Normally, the assesses are taking a chance by filing a matter directly in the High Court which is always at the peril and risk of the petitioner, specially when delay is not condonable. This petitioner is not exception to "chance taking petitioner." This aspects of the matter have been taken care of by deciding the matters in terms of reported decisions as stated hereinabove. Hence, this writ petition may not be entertained by this Court.
(3.) HAVING heard counsel for both sides and looking to the facts and circumstances of the case, we see no reason to entertain this writ petition mainly on the following facts and reasons: (i) Order in original was passed by Additional Commissioner Central Excise on 31st January, 2013 which is appellable under section 85 (3 -A) of the Finance Act, 1994. The period of limitation is sixty days. Delay can be condoned by Commissioner (Appeals) if there are reasonable reasons. But Commissioner (Appeals) have no power, jurisdiction and authority to condone the delay beyond thirty days. In the facts of the present case, as stated by the counsel for the petitioner total delay is approximately fifteen months. The appeal was preferred after fifteen months from the date of which the order in original was passed. For ready reference Section 85 of the Finance Act, 1994 reads as under: "85. Appeals to the [Commissioner] of Central Excise (Appeals) - [(1) Any person aggrieved by any decision or order passed by an adjudicating authority subordinate to the [Principal Commissioner of Central Excise or Commissioner of Central Excise], may appeal to the Commissioner of Central Excise (Appeals)] (2) Every appeal shall be in the prescribed form and shall be verified in the prescribed manner. (3) An appeal shall be presented within three months from the date of receipt of the decision or order of [such adjudicating authority], relating to service tax, interest or penalty under this Chapter [made before the date on which the Finance Bill, 2012 receives the assent of the President]: Provided that the [Commissioner] of Central Excise (Appeals) may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of three months, allow it to be presented within a further period of three months. [(3A) An appeal shall be presented within two months from the date of receipt of the decision or order of such adjudicating authority, made on and after the Finance Bill, 2012 receives the assent of the President, relating to service tax, interest or penalty under this Chapter: Provided that the Commissioner of Central Excise (Appeals) may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of two months, allow it to be presented within a further period of one month]. (4) The [Commissioner] of Central Excise (Appeals) shall hear and determine the appeal and, subject to the provisions of this Chapter, pass such orders as he thinks fit and such orders may include an order enhancing the service tax, interest or penalty: Provided that an order enhancing the service tax, interest or penalty shall not be made unless the person affected thereby has been given a reasonable opportunity of showing cause against such enhancement. (5) Subject to the provisions of this Chapter, in hearing the appeals and making orders under this section, the [Commissioner] of Central Excise (appeals) shall exercise the same powers and follow the same procedure as he exercises and follows in hearing the appeals and making orders under the [Central Excises Act, 1944] (1 of 1944)." (Emphasis supplied) In view of the aforesaid decision and Section 85 (3A) of the Finance Act, 1994 no error has been committed by the Commissioner (Appeals) in not condoning the delay because it was beyond the period of condonable delay. (ii) It has been held by Hon'ble Supreme Court in the case of Singh Enterprises Versus Commissioner of Central Excise Jamshedpur and others reported in : 2008 (3) SCC 70 in paragraph No. 3 to 10 which reads as under: "3. The Division Bench noted that since the Commissioner had no power of condonation beyond the statutorily prescribed period, therefore, the writ petition was without merit. Before the high Court reliance was placed on a decision of this Court in ITC Ltd. V. Union of India to contend that the high Court had the power to condone the delay. This stand was not accepted by the High Court. 4. In support of the appeal, learned counsel for the appellant submitted that even if it is conceded for the sake of argument that the Commissioner had no power to condone the delay, yet the High Court in exercise of power conferred under Article 226 of the Constitution of India can condone the delay. It is stated that the power in this regard is un -trammeled by any statutory provision.;