Karnataka High Court
Phoenix Plasts Company vs The Commissioner Of Central Excise ... on 6 August, 2013
Author: Ram Mohan Reddy
Bench: Ram Mohan Reddy
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 6th DAY OF AUGUST 2013
BEFORE
THE HON'BLE MR.JUSTICE RAM MOHAN REDDY
WP.No.35419/2013(T-TAR)
BETWEEN:
Phoenix Plasts Company,
Plot No.64A, Bommasandra
Industrial Estate, Hosur Road,
Bangalore-560 099
Represented by its Authorised Signatory
Sri.Nithin Prabhakar
S/o.Sri Prabhakar Rao
Aged about 34 years. ...PETITIONER
(By Ms.Anuyparna.B.,
for Sri.Shashi Kiran Shetty.K., Advocate)
AND:
1.The Commissioner of Central
Excise(Appeal I), No.16/1, 5th Floor
SP Complex, Lalbagh Road,
Bangalore-560 027
2.Superintendent of Central Excise,
Bommasandra Range, C Wing,
7th Floor, Kendriya Sadan,
Koramangla, Bangalore-34. ...RESPONDENTS
-0-0-0-0-0-
This writ petition is filed under Articles 226 and
227 of the Constitution of India to set aside the order
2
dated 25.6.2013 passed by the R-1 in Appeal
No.355/2012(B-I)/3320/13 declaring the said appeal
as inadmissible owing to the fact that it has been
presented beyond the period of limitation and direct
the R-1 to consider the appeal No.355/2012(B-
I)/3320/13 on merits(Annexure-A) etc.
This writ petition coming on for orders this day,
the Court passed the following:-
ORDER
Petitioner, a company incorporated under the Companies Act, liable to tax under the Central Excise Act, 1944, suffered an order-in-Orginal No.27/12 dated 2.4.2012 of the Additional Commissioner of Central Excise, Bangalore-1 Commissionerate, Bangalore, which when addressed to the petitioner by registered post acknowledgement due on 2.5.2012 was received by the petitioner on 3.5.2012 as recorded in the postal acknowledgment, containing the seal and signature of the petitioner. Petitioner alleging that the security agency engaged by the petitioner did not hand over the registered letter and it was only when the authorities of the Central Excise 3 sought to execute the order, came to know of it, and accordingly addressed a letter dated 3.12.2012 requesting the respondent-authorities to furnish a copy of the said order. That letter, it is stated, was responded by a communication enclosing a copy of the order and inter-alia pointing out that the petitioner had received the copy of the order-in- original on 3.5.2012. Petitioner acknowledged receipt of a copy of the order on 10.12.2012 and there afterwards preferred an appeal along with an application to condone the delay.
2. The Appellate Authority having returned the appeal without passing an order on the application for condonation of delay, led to the petitioner filing W.P.No.18255/2013, which was disposed off recording the submission of the learned counsel for the respondent-Revenue that the petitioner's application to condone the delay would be considered and orders passed in accordance with law. 4 On the re-presentation of the appeal memorandum along with the application to condone the delay, petitioner was extended an opportunity of hearing, where afterwards by order dated 25.6.2013, Annexure-"A", the application was rejected and consequently it was held that the appeal was not maintainable. Hence, this petition.
3. Facts not being in dispute, it is relevant to note Section 35 of the Central Excise Act, 1944(for short "Act") which reads thus:-
"35. Appeals to [Commissioner (Appeals)].-(1) Any person aggrieved by any decision or order passed under this Act by a Central Excise Officer lower in rank than a [Commissioner of Central Excise] may appeal to the [Commissioner of Central Excise(Appeals) [hereafter in this Chapter referred to as the [Commissioner(Appeals)] [within sixty days] from the date of the 5 communication to him or such decision or order.
[Provided that the Commissioner(Appeals) may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of sixty days, allow it to be presented within a further period of thirty days.] (1A)The Commissioner(Appeals) may, if sufficient cause is shown, at any stage of hearing of an appeal, grant time, from time to time, to the parties or any of them and adjourn the hearing of the appeal for reasons to be recorded in writing;
Provided that no such adjournment shall be granted more than three times to a party during hearing of the appeal.] (2)Every appeal under this Section shall be in the prescribed form and 6 shall be verified in the prescribed manner.
Section 37(C) of the Act reads thus:-
"37C. Service of decisions, orders, summons, etc.-(1) Any decision or order passed or any summons or notice issued under this Act or the rules made thereunder, shall be served,-
(a) by tendering the decision, order, summons or notice, or sending it by registered post with acknowledgement due, to the person for whom it is intended or his authorized agent, if any;
(b) if the decision, order, summons or notice cannot be served in the manner provided in clause (a), by affixing a copy thereof, to some conspicuous part of the factory or warehouse or other place of business or usual place of residence of the person for whom such decision, order, 7 summons or notice, as the case may be, is intended;
(c) if the decision, order, summons or notice cannot be served in the manner provided in clauses (a) and (b), by affixing a copy thereof on the notice board of the officer or authority who or which passed such decision or order or issued such summons or notice.
(2) Every decision or order passed or any summons or notice issued under this Act or the rules made thereunder, shall be deemed to have been served on the date on which the decision, order, summons or notice is tendered or delivered by post or a copy thereof is affixed in the manner provided in sub-section (1)"
4. There can be no dispute that the appellate authority is a creature of the Statute vested with jurisdiction to condone the delay but not beyond the period permissible under the Statue. The period upto 8 which the prayer for condonation can be accepted is statutorily provided. The first proviso to Section 35 makes the position clear that the appeal has to be preferred within sixty days from the date of communication to the assessee of the decision or order. However, if the Commissioner(Appeals) is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of sixty days, can allow it to be presented within a further period of thirty days. In other words, the petitioner should have filed the appeal within sixty days and in terms of the proviso extended by another thirty days. Under Section 35, the Commissioner has no authority or jurisdiction to allow the appeal to be presented beyond the period of thirty days. The legislature having intended the appellate authority to entertain the appeal by condoning the delay only upto thirty days after expiry of sixty days period after preferring the appeal, there 9 is complete exclusion to the application of Section 5 of the Limitation Act.
5. The expression in Section 34 of the Act "from the date of communication of said order" must be read in conjunction with Section 37(C) of the Act, since, service of decisions or orders or summons is by special modes, one of which is, sending it by registered post with acknowledgment due to the person to whom it is intended or to his authorized agent, if any. It is useful to note Section 27 of the General Clauses Act, 1897 which reads thus:-
"27.Meaning of service by post.- Where any (Central Act) or Regulation made after the commencement of this Act authorizes or requires any document to be served by post, whether the expression "serve" or either of the expressions "give" or "send" or any other expression is used, then, unless a different intention appears, the service shall be 10 deemed to be effected by properly addressing, pre-paying and posting by registered post, a letter containing the document, and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post."
If regard is had to the aforesaid statutory provisions, there can be no more doubt that the petitioner having admitted to the fact of having received the order-in-original Annexure-"C" on 3.5.2012, duly acknowledged by affixing its seal and signature on the postal acknowledgement it cannot but be said that the order-in-original dated 2.4.2012 was communicated to the petitioner on 3.5.2012. It is no doubt true that the factum of communication of the order by registered post acknowledgement due is a rebuttal presumption. Nevertheless in the light of the admission of the fact that the order-in-original Annexure-"C" was served on the petitioner on 11 3.5.2012 the submission of the petitioner that the security agency engaged by it did not make available the order-in-original, though received by registered post acknowledgment due, is not a formidable legal ground to contend that the petitioner was not communicated with the order in original, Annexure-
"C".
6. The failure to file an appeal within the time stipulated under Section 35 of the Act, did not entitle the petitioner to condonation of delay of the period beyond the period prescribed under the Statute.
7. In Commissioner of Customs and Central Excise .vs. Hongo India (P) Limited and another [(2009) 24 VST 298(SC)] a three Judge Bench of the Apex Court having regard to the provision for filing an appeal under the Central Excise Act, 1944, observed that the legislature intended the Appellate authority to entertain the 12 appeal by condoning the delay upto only thirty days after expiry of sixth days which is the preliminary limitation period for preferring an appeal. In addition, it was observed that in the absence of any Clause to condone the delay by showing sufficient cause, there is complete exclusion of Section 5 of the Limitation Act.
8. In Singh Enterprises .vs. The Commissioner of Central Excise, Jamshedpur and others[2008(3) SCC 70], the Supreme Court observed that Section 35 of the Central Excise Act, 1944 vested a jurisdiction in the Commissioner of Central Excise(Appeal) to condone the delay within the period permissible under the statute and not beyond that.
9. Though the learned counsel for the petitioner places reliance upon the reported opinion in Texcellence Overseas .vs. Union of India[2013(293) E.L.T. 496(Guj.)] I am afraid in the 13 facts and circumstances obtaining therein, it is not a precedent which could be applied to the facts of this case.
10. In the facts of the present case, the explanation offered by the petitioner that the security agency engaged by it did not make available the order-in-Original, Annexure-"C" though received it on 3.5.2012 is unacceptable. In my opinion, the Commissioner(Appeals) was fully justified in rejecting the application to condone the delay and consequently declining to accept the appeal, by the order impugned.
Petition devoid of merit is rejected.
Sd/-
JUDGE *alb/-.