M/S. Star Battery Limited vs Joint Commissioner
2022 Latest Caselaw 6405 Cal

 Item no. 09


                   IN THE HIGH COURT AT CALCUTTA
                            CIVIL APPELLATE JURISDICTION
                                   APPELLATE SIDE

 Present:
 The Hon'ble Justice T.S. Sivagnanam
               And
 The Hon'ble Justice Supratim Bhattacharya


                                     MAT 670 of 2022
                                           +
                                  IA No.CAN 1 of 2022
                                   IA No.CAN 2 of 2022
                                M/S. STAR BATTERY LIMITED
                                           VS.
                           JOINT COMMISSIONER, CENTRAL EXCISE,
                                    KOLKAT IV AND ORS.


     For the Appellant            :       Mr. Anil Kumar Dugar


     For Respondent                   :   Mr. K.K. Maity

Mr. Tapan Bhanja

Heard on : 08.09.2022

Judgment on : 08.09.2022

T.S. Sivagnanam J.:

1) There is delay of 2864 days in filing the appeal. The learned

advocate appearing for the respondents has strenuously opposed

the prayer for condonation of delay.

2) We have gone through the affidavit filed in support of the

application for condonation of delay. Though several averments

have been made but only one of such averments has appealed to

us mainly that the counsel, who was engaged by the appellant to

defend him and prosecute the matter, has passed away. This

submission cannot be doubted. That apart the order, which was

impugned in the writ petition, was an assessment order passed

under the Central Excise Act, 1944 demanding Central Excise

dues of Rs.18,62,403/- from the appellant. Though such order

came to be passed on 25.02.2011, till date the department is

unable to recover the same as nothing is on record to indicate that

recovery proceeding was initiated. This is probably because the

appellant ran into financial difficulties and proceeding under

SARFAESI Act, 2002 is set to have been initiated against him.

Thus, considering the totality of the circumstances this Court is of

the view that ends of justice would be made if delay in filing the

appeal is condoned. Accordingly, CAN 2 of 2022 is allowed and

delay is condoned.

3) This intra-Court appeal is directed against the order dated

31.03.2014 dismissing WP 31450 (W) of 2013 filed by the

appellant on the ground that the Court has got no power to

direct the statutory appellate authority to entertain an appeal

beyond the period of limitation prescribed under the Act. The

learned Single Bench has noted the decision in the case of

M/s. Singh Enterprises vs. Commissioner of Central

Excise, Jamshedpur, reported in 2008 (221) E.L.T. 163

(S.C.). The aofrementioned legal position is a settled legal

position and the learned Single Judge was perfectly right in

not granting relief sought for by the appellant. However, we

are of the view, a party should not be left remediless. No

doubt the conduct of the party needs to be considered, which

in our view, can be given a liberal approach, more

particularly, when the appellant had suffered an order in the

hands of the appellate authority on the ground that the

appeal was barred by time and before the learned Writ Court

on the technical ground that the limitation for preferring an

appeal cannot be extended. However, as against the order

passed by the first Appellate Authority an appellate remedy is

available before the Custom Excise Service Appellate Tribunal

( for short "Tribunal"). Since the Tribunal is the last fact

finding forum in the hierarchy of authorities, we are of the

view that the appellant can be granted liberty to file an appeal

before the Tribunal subject to certain conditions.

4) Accordingly, MAT 670 of 2022 is allowed in part and the

order passed by the learned Single Judge is modified with the

direction directing to the appellant to pay 25% of the due

demand of Central Excise within a period of six weeks from

the date of receipt of the server copy of this order. If such

payment is effected then the appellant shall be entitled to file

a statutory appeal before the learned Tribunal along with an

application for condonation of delay which the learned

Tribunal can consider by adopting liberal approach so that

the matter can be decided on merits and in accordance with

law. Consequently, CAN 1 of 2022 is disposed of.

5) Viewing the matter from the perspective of the revenue it

would protect the interest of the revenue if an order is passed

on merits of the matter since the order passed by the original

authority in the year 2011 is continued to remain as a paper

order till date. The appellant shall file an appeal before the

Tribunal within fifteen days from the date of paying 25% of

the demand in terms of the above direction.

6) It is made clear that the above direction has been passed

considering the peculiar facts and circumstances of the case,

more particularly, because the learned advocate representing

the appellant had passed away. This order shall never be

treated as a precedent in any other matter.

7) Urgent photostat certified copy of this order, if applied for, be

furnished to the parties expeditiously upon compliance of all

legal formalities.

(T. S. Sivagnanam, J.)

(Supratim Bhattacharya, J.) RP/AN