@Q’L’? @a‘g‘t J. ..... C) Wg-«gxw w? HIGH COURT OF CHHATTIsGARH AT BxLAspun WRIT PETITION {gvrNO.ég 03 OF 2010 PETITIONER L’rd., a company duly incorpora’red under The relevant provisions of Companies Act, 1956, having ifs office a? 69, Mahalaxmi Market Pandri, Raipur (CG) Vs T'r M/s B.K. InfrasTruc‘rur‘e Pv‘r. RESPONDENT /The Commissioner, Central Excise, Division Raipur‘, Roipur‘. PETITION UNDER ARTICLE 226/227 OF THE CONSTITUTION OF INDIA HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION (T) N0. 6903 of 2010 PETITIONER : M/s. B.K.Infrastructure Pvt. Ltd. VERSUS RESPONDENTS : The Commissioner, Central Excise Raipur. PETITION UNDER ARTICLE 226/227 OF THE CONSTITUTION OF INDIA SB: Hon’ble Shri Satish K. Agnihotr_i,_J. Present: Shri B.P.Sharma, Advocate for the petitioner. ' Shri Bhishma Kinger, Advocate for the respondent. ORDER g ORAL! (Passed on 02" day of December, 2010) 1. By this petition under article 226/227 of the Constitution of India, the petitioner seeks a wrivdirection to quash the impugned order dated 11.03.2010 (Annexure P/4) passed by the Commissioner, Central Excise'and Customs (Appeals-I), Raipur, Whereunder the appeal of the petitioner flled under section 35 of the Central Excise Act, 1944 (hereinafter referred to as ‘the Act, 1944’), was dismissed on the ground of delay. 2. The sole argument of learned counsel for the petitioner is that the petitioner has filed an applicatiOn for condonation of delay (Annexure P/2) stating sufficient and cogent reasons for condonation of delay. The Commissioner, without considering the grounds raised therein, dismissed the appeal on the ground of delay. Shri Sharma further submits that the delay of postal department in delivering the document may be condoned, relying on a decision of the Supreme Court in \ , , \‘\ \p Commissioner 0f Income Tax, Bombay South, Bombay v. Messers \ \ \ @O/ M/s. Ogale GlasswarksLtd. Ogale Wadi]. Shri Sharma next submits that if the sufficient grounds were made available, the Commissioner y ought to have condoned the same in the light of the decision of the Supreme Court in Bharti Telenet Ltd. v. Union oflndz’a & Others2. 3. Shri Kinger, learned counsel appearing for the respondent submits that the Commissioner has no power to condone the delay beyond the period of 90 days under the provisions of section 35 of the Act, 1944. l’ M\ In the case on hand, the petitioner has not submitted reasonable and r cogent reasons for condonation of delay, and even in that case also, the Commissioner could not have condoned the delay beyond the further. period of 30 days from the period of limitation of 60 days. Admittedly, there was total delay of 185 days, after deducting 60 days limitation period and further, period of 30 days for condonation of delay, it was 95 days. The Commissioner was not competent to condone the delay beyond 90 days in any event. Thus, the impugned order passed by the Commissioner is just and proper. I i ? ‘x‘: , ' 4. Section 35 ofthe Act, 1944 reads as under: “35. Appeals to Commissioner (Appeals). — (l) 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 communication to him of 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 w1thm the aforesaid period of mxty days allow 1t to be presented Within a further period of thirty days ” a, ‘ AIR i954 sc 429 2 (2005) 4 scc 72 \\\ 3 (2009) 5 scc 791 \V Appeal to the Commissioner (Appeals) under section 35 is maintainable within 60 days from the date of communication of such decision and order. Proviso to section 35 provides that .if the Commissioner (Appeals) is satisfied that the appellant was prevented by sufflcient cause from presenting the appeal within the period of 6O days, he may allow the same to be presented within a further period of 30 days, in total, 90 days. In the application for condonation of delay (Annexure P/2), the petitioner has neither stated asto when he has received communication of decision or order and thereafter, when the appeal was sent by post. Th‘us, the grounds raised by the petitioner relying on the above stated cases, are not relevant to the facts of the case. ¢ The Supreme Court, in Commissioner ofCustoms & Central Excise v. Hongo India Private Limited & Another3, has made it clear that the legislature has provided 6O days and further 30 days, in total 90 days for filing an appeal to the Commissioner. For filing appeal and reference to the High Court, the limitation, in total, is 180 days. The relevant portion of the said decision reads as under: “31. In this regard, it is useful to refer to a recent decision of this Court in Punjab Fibres Ltd. The Commissioner of Customs, Central ExcTse, Noida was the appellant in this ease. While considering the very same question, namely, whether the High Court has power'to condone the delay in presentation of the reference under section 35- H(1) of the Act, the two-Judge Bench taking note of the said provision and other related provisions following Singh Enterprises v. CCE concluded that : (Punjab Fibres Ltd. case, SCC p. 75, para 8) “8. ...the High Court was justified in holding that there was no power for condonation of delay in filing reference application.” v 32. As pointed out earlier, the language used in Sections 35, 35-B, 35-EE, 35—G and 35-1-1 makes the position clear that an appeal and reference to the High Court should be made within 180 days only from the date of communication of the decision or order. In other words, the language used in other provisions makes the position clear that the legislature intended the appellate authority to entertain the appeal by condoning the delay only upto 30 daysafter expiry of 60 days which is the preliminary limitation period for preferring an appeal. In the absence of any clause condoning the delay by showing sufficient cause aher the prescrlbed perlod there ls complete excluswn of Section 5 of the L1m1tat10n Act The High Court was, therefore, _1ust1f1ed 1n holdlng that there was no power to condone the delay after expiry of the prescribed period of 180 days.” Sd/‘ udge Saush K Agnihon‘f Amit . Applying the well settled principles of law to the facts of the present case, in View of the aforestated analysis, the order passed by the Commissioner (Appeals), impugned herein, is just, proper and does not warrant interference. . Accordingly, the writ petition is diSmiSSed. v H ' l. g K , mu}