D R INDUSTRIES LTD Vs. UNION OF INDIA

JUDGEMENT

(1.) ALL these petitions challenge the constitutional validity of the proviso to sub-section (1) of Section 35 of the Central Excise Act, 1944 ("the Act" for short) in so far as it provides that the power of the Commissioner (Appeals) to condone the delay in filing the appeal beyond the period of 60 days is confined to delay for a further period of 30 days only.

(2.) IN Special Civil Application No. 4973 of 2006, the Deputy Commissioner of Central Excise and Customs, Division I, Ankleshwar passed order dated 26. 6. 2002 confirming the demand of excise duty to the tune of Rs. 19,01,364/- with interest at the appropriate rate in terms of Section 11ab of the Act and also imposing penalty of Rs. 5,00,000/- on the petitioner Company in terms of erstwhile Rule 173q (1) of the Central Excise Rules, 1944. The petitioner preferred an appeal against the said order before the Commissioner (Appeals), Central Excise and Customs, Vadodara on 11/2/2003 alongwith an application for condoning the delay. The petitioner contended that although the impugned order was handed over by the Superintendent, Central Excise to their consultant in July, 2002, the same was not handed over to the petitioner and that the petitioner Company received the order only on 27/1/2003 and, therefore, the appeal filed on 11. 2. 2003 was within the limitation period of 60 days. It was contended in the alternative that if there was delay, there was sufficient cause for the delay in presenting the appeal beyond the limitation period of 60 days and, therefore, the delay may be condoned. The Commissioner (Appeals) took the view that the impugned order was served upon the petitioner in July, 2002 and, therefore, the time limit of 60 days for filing the appeal expired in September, 2002. The Commissioner (Appeals) can condone the delay only for a period upto 30 days after expiry of the limitation period of 60 days and, therefore, the total period of 90 days having expired in October, 2002, the Commissioner (Appeals) had no power to condone the delay beyond the period of 30 days after expiry of the limitation period of 60 days. The Commissioner (Appeals) also referred to the decision of the Bombay Bench of the Tribunal in M/s Mayur Steel Co-op. vs. Commissioner of Customs, Ahmedabad, 2004 (176) ELT 107 (Tri. Mumbai) and the decision of the Delhi Bench of th Tribunal in M/s Delta Impex vs. Commissioner of Customs (ACU), New Delhi, 2004 (173) ELT 449 (Delhi) taking the view that the Commissioner (Appeals) had no power to condone the delay in filing the appeal beyond the total period of 90 days from the date of service of the impugned order.

(3.) SIMILARLY in Special Civil Application No. 11860 of 2006, the Order-in-Original was passed by the Joint Commissioner, Central Excise and Customs, Daman on 29/4/2004. The petitioner preferred an appeal with an application for condonation of delay on 13/2/2006 stating that the order was received on 5/5/2005. The reason for the delay was that the Director of the petitioner Company met with a serious road accident and got multiple fractures and had to undergo prolonged hospitalization and rest. There was thus delay of 589 days in filing the appeal. The Commissioner (Appeals) held that he had no power to condone the delay beyond the period of 30 days after expiry of the limitation period of 60 days. Reliance was placed on the decisions of the Delhi High Court in M/s Delta Impex, 2004 (93) ECC 373 and M/s M. R. Tobacco Pvt. Ltd. , 2004 (94) ECC 373.