:1: bg bg bg p IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION WRIT WRIT WRIT PETITION NO.4273 OF 2008 PETITION NO.4273 OF 2008 PETITION NO.4273 OF 2008 Ajinkya Enterprises & Anr. ..Petitioners Vs. Union of India & Ors. ..Respondents Mr.Manoj Sankhalecha i/b.Shri.Vikrant C.Deshpande for the Petitioners. Mr.A.S.Rao with Shri.M.S.Bhardwaj with Shri.A.S.Khan for the Respondents. CORAM CORAM CORAM :- DR.S.RADHAKRISHNAN & :- DR.S.RADHAKRISHNAN & :- DR.S.RADHAKRISHNAN & A.V.NIRGUDE, A.V.NIRGUDE, A.V.NIRGUDE, JJ. JJ. JJ. DATE DATE DATE : 2ND JULY, 2008 : 2ND JULY, 2008 : 2ND JULY, 2008 P.C. P.C. P.C. 1. Heard the learned Counsel for the parties. Rule. Rule is made returnable forthwith. The learned Counsel for the Respondents waives service. Perused the Affidavit in reply dated 25th June,2008 filed on behalf of the Respondents. 2. By this Appeal, the Appellant is challenging the order dated 15th October,2007 passed by the Commissioner (Appeals) as well as the further order dated 12th February,2008 passed by the CESTAT, whereby the CESTAT had confirmed the order of the Commissioner (Appeals). :2: 3. The main grievance of the learned Counsel for the Petitioner in the above is that when the Petitioner could not file the Appeal in time within 60 days, he had sent a letter dated 18th July,2007 to the Commissioner (Appeals) very categorically mentioning therein, that "due to unforeseen exigencies, we have been unable to file the Appeal, till date. We request you to grant us a further extension of 30 days to file the same." After the aforesaid letter, it appears that the Appellant had filed an Appeal immediately after the expiry of 60 days but within 30 days i.e. to say that there was a delay of 29 days in filing the above Appeal. 4. Mr.Sankhalecha, the learned Counsel for the Petitioner brought to our notice the provisions of Section 35 of the Central Excise Act,1944, which reads as under: Section Section Section 35 : Appeals to Commissioner (Appeals) 35 : Appeals to Commissioner (Appeals) 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 communication to him of such decision or order: [Provided Provided 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 :3: of an appeal, grant time, from time to time, to the parties to any of them and adjourn the hearing of the appeal for reasons to be recorded in writing; Provided Provided 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 shall be verified in the prescribed manner. 5. Mr.Sankhalecha, the learned Counsel for the Petitioner contended, that after the aforesaid letter dated 18th July,2007, the Appeal was presented on 22nd August,2007 by which time, there was a delay of 29 days. However, the Commissioner (Appeals) had allowed it to be presented before him and had issued an appropriate notice dated 18th September,2007 for final hearing of the Appeal/Stay Application itself on merits, which is annexed at Exhibit-"I" to the Petition. Not only that, the Commissioner (Appeals) also heard the Appellant only on merits on 28th September,2007 and had recorded all the submissions and at no point of time neither the Appellant nor the Appellant’s partner was even told that the Appeal was beyond the time of 29 days and all the arguments of the Appellant’s partner on merits were recorded. However, the Commissioner (Appeals) choses to pass the impugned order on 15th October,2007 dealing with all the contentions, and while passing the said order, he had considered only the issue of limitation, as under: :4: . "I have carefully considered the records of the case and the submissions of the Appellant, I find that the Appellant has filed the Appeal beyond the prescribed period of sixty days from the date of communication of order. The date of communication of order was 25th May,2007, while the Appeal was filed on 22nd August,2007 which means there was a delay of 29 days in filing the Appeal beyond the specified period of 60 days. As per Section 35 of Central Excise Act,1944, "Any person aggrieved by any decision or order passed under this Act by a Central Excise Officer lower in rank than the Commissioner of Central Excise, may appeal to the Commissioner of Central Excise (Appeals) within 60 days from the date of 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 within the aforesaid period of 60 days, allow it to be presented within a further period of 30 days". In this case the Appellant has filed the Appeal after a delay of 29 days and has requested for condonation of delay but has not given any specific reason/cause for delay in submitting the Appeal. At the time of personal hearing also, no reason was given to use my discretion. I am therefore not inclined to condone the same since the Appellants have not put forth any explanation to show that they were prevented by sufficient cause from filing this Appeal late. 6. The Commissioner (Appeals) had not considered the Appeal on merits at all and had decided the same only on the ground that the Appeal was beyond the time of 29 days and that the Appellant had no any specific reason for condoning the delay. Over and above, the Commissioner (Appeals) had observed that even at the time of personal hearing no reasons whatsoever were given for condoning the delay and as such, the Commissioner (Appeals) had declined to condone the said delay of 29 days. 7. Aggrieved thereby the Petitioner had approached the CESTAT and unfortunately, the CESTAT :5: also had mechanically rejected the Appeal concurring with the view of the Commissioner (Appeals) stating that the Appeal was delayed by more than 29 days and no sufficient cause was shown for condoning the delay. It is very pertinent to note from the first proviso to Section 35 of the Central Excise Act,1944, which abundantly makes it clear that the Commissioner (Appeals) may if he satisfied that the Appellant was may if he satisfied that the Appellant was may if he satisfied that the Appellant was prevented prevented prevented by sufficient cause, then only the Appeal by sufficient cause, then only the Appeal by sufficient cause, then only the Appeal will will will be allowed to be presented within a further be allowed to be presented within a further be allowed to be presented within a further period period period of 30 days of 30 days of 30 days. 8. There is no dispute in this case that the Appeal was allowed to be presented otherwise, there was no question of issuing any notice to the Appellant for personal hearing on Stay Application and the main Appeal. Over and above, there was no question of Commissioner (Appeals) recording all submissions of Appellant’s partner on merits in the impugned order and considering only the ground of delay and dismissing the same. Ex-facie, the order passed by the Commissioner (Appeals) cannot be sustained at all. Inasmuch as one of the basic principles of natural justice is, that the party should put to notice that the above Appeal was delayed by more than 29 days and that the Appellant ought to have explained the same. Whereas, in the instant case, the Appellant had in fact given a letter dated 18th July,2007 very categorically stating that due to unforeseen :6: exigencies, they were unable to file the Appeal and had requested to grant extension of further 30 days. In the above, the Appeal was filed on 29th day. If the Commissioner (Appeals) was of the view that the delay ought not have been condoned, then there was no question of issuing notice to the Appellant for hearing of the Appeal/stay application. In view of the said Notice, the Appellant obviously presumed that the delay had been condoned and the Commissioner (Appeals) was fully satisfied and therefore, the Appeal was allowed to be presented for being heard and the Appellant was given such an impression that the Commissioner (Appeals) had condoned the delay in filing the Appeal. 9. We are fully convinced that the Commissioner (Appeals) had allowed the Appeal to be presented and heard the same on merits, it means he was fully satisfied with sufficient cause for condoning the delay of 29 days and as such the same was condoned. If the Appeal was not allowed to be presented without being satisfied with the delay, the Commissioner could not have even issued the notice of hearing to the Appeal as well as on the stay Application. 10. Under the aforesaid facts and circumstances of the case, we find that the impugned order dated 15th October,2007 passed by the Commissioner (Appeals) as well as the impugned order dated 12th February,2008 :7: passed by the CESTAT are not sustainable in law and accordingly we set aside both the aforesaid orders and remand back the Appeal to the Commissioner (Appeals) for hearing and final disposal of the same strictly on its own merits in accordance with law. Rule is made absolute accordingly. (A.V.NIRGUDE,J.) (A.V.NIRGUDE,J.) (A.V.NIRGUDE,J.) (DR.S.RADHAKRISHNAN,J.) (DR.S.RADHAKRISHNAN,J.) (DR.S.RADHAKRISHNAN,J.)