Ravi Hi-tech Ltd. Vs. Commissioner of Central Excise - Court Judgment

Excerpt:
1. counsel for the applicant says that there has in fact been no delay in filing the appeals. the appellant did not receive the order in original and it was only obtained in response to a letter dated 9.9.2000 to the commissioner by the advocate. the appeals having been filed within october of that year, there is therefore no delay. he accordingly withdraws the applications for condonation of delay. these applications are accordingly dismissed as withdrawn.2. the order of the commissioner disposing of the appeal before him on the ground of limitation observing that the each appeal has been filed beyond six months after the date of communication of the order. while the counsel for the appellant says that there was no delay in filing the appeal before the commissioner (appeals), reckoned for he period of date of the receipt of the impugned order, there is no such ground in the appeal. there is therefore no ground for interference with the order of the commissioner (appeals) dismissing the appeal on limitation.3. the counsel for the appellant raised another point that it was no heard by thee commissioner (appeals) before his orders were passed. he contends that even if the delay was beyond six months, hearing should have been accorded citing for this purpose the decision of the single member of this tribunal in tata oil mills co. ltd. v. cce 4. that order does hold that, even in the case before him where the appeal was filed beyond a period of six months under section 35f of the act, hearing should have been granted. it has however evidently been passed without considering the consequence of the statutory provisions concerned. the commissioner (appeals) is empowered by the provision under section (1) of section 35 of the act to condone a delay of three months in filing the appeal. he has no power to condone delay in excess of this period. hence even if the most persuasive arguments were advanced before him and he was entirely convinced that the appellant was prevented by sufficient cause from filing the appeal in time, he would still have to hold that he appeal before him was barred by limitation. therefore, granting a hearing in such a case in nothing more than an empty formality. the order of the decision of the tribunal relied upon by the counsel for appellants does not consider this aspect. the decision therefore is per incuriam of the statutory provisions. it therefor thus do s not constitute precedent.

Judgment:
1. Counsel for the applicant says that there has in fact been no delay in filing the appeals. The appellant did not receive the order in original and it was only obtained in response to a letter dated 9.9.2000 to the Commissioner by the advocate. The appeals having been filed within October of that year, there is therefore no delay. He accordingly withdraws the applications for condonation of delay. These applications are accordingly dismissed as withdrawn.

2. The order of the Commissioner disposing of the appeal before him on the ground of limitation observing that the each appeal has been filed beyond six months after the date of communication of the order. While the counsel for the appellant says that there was no delay in filing the appeal before the Commissioner (Appeals), reckoned for he period of date of the receipt of the impugned order, there is no such ground in the appeal. There is therefore no ground for interference with the order of the Commissioner (Appeals) dismissing the appeal on limitation.

3. The counsel for the appellant raised another point that it was no heard by thee Commissioner (Appeals) before his orders were passed. He contends that even if the delay was beyond six months, hearing should have been accorded citing for this purpose the decision of the single member of this Tribunal in Tata Oil Mills Co. Ltd. v. CCE 4. That order does hold that, even in the case before him where the appeal was filed beyond a period of six months under Section 35F of the Act, hearing should have been granted. It has however evidently been passed without considering the consequence of the statutory provisions concerned. The Commissioner (Appeals) is empowered by the provision under Section (1) of Section 35 of the Act to condone a delay of three months in filing the appeal. He has no power to condone delay in excess of this period. Hence even if the most persuasive arguments were advanced before him and he was entirely convinced that the appellant was prevented by sufficient cause from filing the appeal in time, he would still have to hold that he appeal before him was barred by limitation. Therefore, granting a hearing in such a case in nothing more than an empty formality. The order of the decision of the Tribunal relied upon by the counsel for appellants does not consider this aspect. The decision therefore is per incuriam of the statutory provisions. It therefor thus do s not constitute precedent.