Mahavira Gases (P) Ltd. Vs. Commissioner of Central Excise - Court Judgment

Excerpt:
1. the deputy commissioner of central excise, ghaziabad, vide his order, dated 31.10.2000, confirmed a demand of duty of rs. 92,720 on the appellants and further imposed a penalty of rs. 20,000 on them. the party filed an appeal. the commissioner of central excise (appeals), ghaziabad in his order dated 15.10.2001, observed that the order-in-original dated 31.10.2000, is received by the appellants on 22.12.2000, as reflected in his order. he has observed that the appeal is filed in his office on 1.10.2001 after a delay of more than seven months as provided under section 35(1) of the central excise act, 1944.the lower appellate authority has, therefore, dismissed the appeal of the party as being time barred.2. this appeal is filed by the party against the impugned order dated 15.10.2001 of the commissioner (appeals), ghaziabad. shri rajesh chhibber, learned advocate appearing for the appellants does not dispute that the appeal before the commissioner (appeals), ghaziabad is filed with a delay of more than seven months over and above the three months period available to an appellant to file an appeal under the statutory provisions. the learned counsel for the appellants is, however, contending that the appellants have not been afforded any opportunity of hearing and, therefore, the order of the lower appellate authority in dismissing their appeal as time barred is bad in law, he is also relying on the following decisions of the tribunal in support of his contention:--perfect refractories v. cce, bhopal 3. i have considered the submissions made before me. the delay of more than seven months in filing the appeal before the lower appellate authority by the appellants is not in dispute. the statutory provisions under section 35(1) ibid enable the appellants to file an appeal within three months from the date of communication to him of such decision or order with the provision to condone a further delay of three months by the commissioner (appeals) in filing the appeal, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of three months. in the present case the appeal is not only filed beyond the period as prescribed under these provisions, the appellants-knowing as they did that the appeal was being filed beyond even the period of condonation of delay did not file any petition for condonation of the period of delay. i, therefore, find no ground to interfere in the order passed by the lower appellate authority. the reliance placed by the learned counsel for the appellants on the aforesaid two decisions of the tribunal is misplaced.in the first decision in maithan ceramic limited, the tribunal has referred the question to the larger bench whether the cegat can consider an appeal on merits against the order of the commissioner (appeals) dismissing the appeal of the party on time bar. in the present case, there is no plea put forth by the appellants to consider their appeal on merits. in the second decision in perfect refractories, the matter is remanded to the commissioner (appeals) for.re-consideration of the appeal of the party which is dismissed by him without affording any opportunity of hearing to the appellants on his petition for condonation of delay. in the present case, as already discussed above, the appellants never filed any cod petition before the commissioner (appeals) and, therefore, the question of its dismissal in violation of principle of natural justice would not arise. in fine, there is no merit in the present appeal, the same is accordingly dismissed.

Judgment:
1. The Deputy Commissioner of Central Excise, Ghaziabad, vide his order, dated 31.10.2000, confirmed a demand of duty of Rs. 92,720 on the appellants and further imposed a penalty of Rs. 20,000 on them. The party filed an appeal. The Commissioner of Central Excise (Appeals), Ghaziabad in his order dated 15.10.2001, observed that the Order-in-Original dated 31.10.2000, is received by the appellants on 22.12.2000, as reflected in his order. He has observed that the appeal is filed in his office on 1.10.2001 after a delay of more than seven months as provided under Section 35(1) of the Central Excise Act, 1944.

The lower appellate authority has, therefore, dismissed the appeal of the party as being time barred.

2. This appeal is filed by the party against the impugned order dated 15.10.2001 of the Commissioner (Appeals), Ghaziabad. Shri Rajesh Chhibber, learned Advocate appearing for the appellants does not dispute that the appeal before the Commissioner (Appeals), Ghaziabad is filed with a delay of more than seven months over and above the three months period available to an appellant to file an appeal under the statutory provisions. The learned Counsel for the appellants is, however, contending that the appellants have not been afforded any opportunity of hearing and, therefore, the order of the lower appellate authority in dismissing their appeal as time barred is bad in law, He is also relying on the following decisions of the Tribunal in support of his contention:--Perfect Refractories v. CCE, Bhopal 3. I have considered the submissions made before me. The delay of more than seven months in filing the appeal before the lower appellate authority by the appellants is not in dispute. The statutory provisions under Section 35(1) ibid enable the appellants to file an appeal within three months from the date of communication to him of such decision or order with the provision to condone a further delay of three months by the Commissioner (Appeals) in filing the appeal, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of three months. In the present case the appeal is not only filed beyond the period as prescribed under these provisions, the appellants-knowing as they did that the appeal was being filed beyond even the period of condonation of delay did not file any petition for condonation of the period of delay. I, therefore, find no ground to interfere in the order passed by the lower appellate authority. The reliance placed by the learned Counsel for the appellants on the aforesaid two decisions of the Tribunal is misplaced.

In the first decision in Maithan Ceramic Limited, the Tribunal has referred the question to the Larger Bench whether the CEGAT can consider an appeal on merits against the order of the Commissioner (Appeals) dismissing the appeal of the party on time bar. In the present case, there is no plea put forth by the appellants to consider their appeal on merits. In the second decision in Perfect Refractories, the matter is remanded to the Commissioner (Appeals) for.

re-consideration of the appeal of the party which is dismissed by him without affording any opportunity of hearing to the appellants on his petition for condonation of delay. In the present case, as already discussed above, the appellants never filed any COD petition before the Commissioner (Appeals) and, therefore, the question of its dismissal in violation of principle of natural justice would not arise. In fine, there is no merit in the present appeal, the same is accordingly dismissed.