Important Point
Petition under Article 226 of Constitution would not lie for the purpose of condonation of delay in filing appeal.

(PER : HONOURABLE MR.JUSTICE JAYANT PATEL)

1. The Division Bench of this Court has formulated the following questions and has referred the matter to the Larger Bench :

“(1.) Whether the period of limitation provided of 60 days, for filing an appeal under Section 35 of the Central Excise Act, 1944, could be extended only upto 30 days as provided by the proviso or the delay beyond the period of 90 days could also be condoned in filing an appeal?

(2.) Where a statutory remedy or appeal is provided under Section 35 of the Central Excise Act, 1944 and the delay cannot be condoned under Section 35 beyond the period of 90 days, then whether Writ Petition under Article 226 of the Constitution of India would lie for the purpose of condoning the delay in filing the appeal?

(3.) When if the statutory remedy or appeal under Section 35 is barred by the law of limitation whether in a Writ Petition under Article 226 of the Constitution of India, the order passed by the original adjudicating authority could be challenged on merits?

2. As such, the background of the matters are that the petitioner of SCA No.18542/14 had preferred appeal before the Customs, Central Excise & Service Tax Appellate Tribunal (Ahmedabad), against the order passed by the Commissioner of Central Excise (Appeals), which arose from the order passed by the adjudicating authority being Order in Original. In the said appeal there was delay of 118 days in preferring appeal and therefore, the Tribunal dismissed the appeal on the ground of delay since as per the Tribunal, there was no power to condone the delay beyond 30 days. Under the circumstances, the said petition. When the appeal came up for hearing before the Division Bench of this Court, the Division Bench noticed that since as per the provisions of section 35 of the Central Excise Act, 1934 (hereinafter referred to as the “Act”) the delay cannot be condoned beyond the period of 90 days, i.e., 60 days being the prescribed period and further discretion to condone the delay in 30 days. But the learned counsel for the petitioner placed reliance upon the another decision of the Division Bench of this Court in the case of Amitara Industries Ltd. vs. Union of India decided on 30.01.2013 passed in SCA No.6069/11 and contended that as per the view taken in the said decision, the delay can be condoned beyond the period of 90 days provided there is a good case on merits and the learned counsel for the petitioner also relied upon other decisions of this Court including the decision in the case of D.R. Industries Ltd. vs. Union of India reported at 2008 (229) ELT 24 (Guj). The Division Bench hearing SCA No.18542/14 found that the matter is required to be referred to the Larger Bench for decision. Hence, the aforesaid questions were formulated and the matter has been referred to the Larger Bench.

3. It may be recorded that when SCA No.13530/14 came up before the another Division Bench of this Court, it was brought to the notice of the said bench that the question involved in the petition for the period of limitation has been referred to the Larger Bench in SCA No.18542/14. Under the circumstances, the said SCA No.13530/14 has been listed before the larger bench simultaneously.

4. We have heard Mr.Paresh Dave with Mr.Dhaval Shah, learned counsel appearing for the petitioners in both the matters and Mr.Darshan Parikh appearing in SCA No.13530/14 for the respondents.

5. Mr.Dave, learned counsel appearing for the petitioners, at the outset submitted that the reference could be said as incompetent since there were no divergent views of the two Division Benches of this Court. He submitted that the Division Bench of this Court, which referred the matter to the Larger Bench was guided by the impression that the decision of this Court in the case of Amitara Industries Ltd. (supra) and D.R. Industries Ltd. (supra) were in conflict and therefore, the referral bench found it proper to refer the matter to the Larger Bench which is on a no