@JUDGMENTTAG-ORDER
1. Validity of proviso to Section 35 of the Central Excise Act, 1944 have been assailed in this petition. Section 35 provides the appeal to be filed within a period of three months and the proviso further provides a period of another three months for condonation of delay. If the appeal is filed after the expiry of 6 months then the Appellate Authority has no power to condone the delay, therefore it is contended that it is arbitrary exercise of power by the Parliament. It is stated that there may be number of circumstances by which an assessee is prevented from filing the appeal and taking away his right to file an appeal is violative of the right of the petitioner to carry on his business as even the tax which is levied may be without the authority of law itself for which the petitioner would have no remedy.
2. Learned Counsel for the petitioner on the ground of condonation of delay relied on the following judgments;
State of Kerala v E.K. Kuriyipe and Others:
"The sufficient case for condonation of delay is a question of fact dependent upon the facts and circumstances of the particular case":
Smt. Milavi Devi v Dina Nath :
"In case the appellant had sufficient cause for not filing the appeal within the period of limitation, the Court under Article 136 can reassess the ground and in appropriate case set aside the order made and remit the matter for hearing on merits".
O.P. Kathpalia v Lakhmir Singh:
"If the refusal to condone the delay would result in grave miscarriage of justice, it would be a ground to condone the delay".
Bhag Singh and Others v Major Daljit Singh and Others.
"The Court should not take too strict and pedantic stand, which will cause injustice while considering the application for condonation of delay and it should be considered from the point of view which will advance the cause of justice".
Collector, Land Acquisition, Anantnag and Another v Mst. Katiji and Others:
"The Court should have a pragmatic ad liberal approach for doing substantial justice and the power conferred for condoning the delay should be liberally approached.
N. Balakrishnan v M. Krishnamurthy:
"The delay caused due to failure of Advocate to inform the appellate as well as his failure to take action would be sufficient cause for condoning the delay of 883 days in filing of appeal".
Paliwal Steels Private Limited v Union of India and Others:
"Any delay should be condoned ordinarily, provided delay is not on account of culpable negligence and or mala fide intention and mere technical approach must be avoided".
E. Sefton and Company Private Limited v Government of India:
"The expression ''sufficient cause'' in Section 35 and Section 35B of the Central Excise Act, will have to be interpreted in a meaningful manner so as to subserve the ends of justice".
Kishanlal Meghraj Soni v Collector of Customs :
"It is not necessary to hold that the appellant should have been vigilant during earlier period of limitation and same goes against the principle laid down by the Hon''ble Supreme Court in Katiji''s case, supra".
3. It is stated that in the case of ITC Limited and Another v Union of India , the petitioners were permitted to file the appeal which were time barred and as such it is submitted that the provision itself may be declared ultra vires the constitutional provision and in the alternative the delay in submitting the appeal may be directed to be condoned.
4. On behalf of the respondent learned Standing Counsel has relied the decision given in the case of Union of India v Kirloskar Pneumatic Company Limited, wherein it was observed that it is not permissible for the High Court, even while acting u/s 226 of the Constitution, to direct the authorities under the Act to act contrary to the statutory provision. The power conferred by Articles 226/227 is designed to effectuate the law, to enforce the rule of law and to ensure that the several authorities and organs of the State act in accordance with law.
Reliance is also placed on the judgment given in the case of Mafatlal Industries v Union of India , wherein also it was observed that while exercising the power under Article 226 and Article 32, the Court [cannot] certainly take note of the legislative intent manifested in the provisions of the Act and would exercise their jurisdiction consistent with the provisions of Section 11B of the Act. It is stated that the power to file an appeal is statutory right i.e., the right created by the statute and is not fundamental right under the Constitution. If certain restrictions have been placed on the statutory right, then the assessee has to comply with that. Simply because the restrictions regarding limitations are provided under the provisions of Section 35 it cannot be considered to be violative of any provision of the Constitution.
5. I have considered over the matter. Right of appeal is a statutory right and therefore the Parliament has the power to put restriction on the exercise of such power. Simply because, the right of appeal cannot be exercised after the expiry of six months, the proviso cannot be considered as unreasonable. Under different statutes, different restrictions have been placed on the exercise of power to file the appeal. Certain legislative provision has put a condition of depositing the entire demand before filing of appeal while in others the requirement is to deposit the admitted amount of tax and in some other matters, 50% of the demand is to be deposited, which is an exercise of legislative power.
6. In Gokak Mills, Gokak Falls v Commissioner for Workmen''s Compensation, Belgaum, pre-deposit of award amount was not considered to be making the appeal as illusory or arbitrary. This decision was given following the judgment in Anant Mills Company Limited v State of Gujarat. I need not multiply the citation. The only point which has to be seen is whether the restriction imposed in restricting the delay of filing of appeal is violative of any provisions of the Constitution. Even the right to carry on the business could be with a reasonable restriction. It is not that the demand created by an authority under the Act is made absolute without any right of appeal. The provisions of Section 35 therefore cannot be considered to be violative of any provision of the Constitution of India. Once this conclusion is arrived at, this Court while exercising the power under Article 226 cannot direct to act contrary to the statutory provision or declare them unconstitutional. Since the statute itself has provided a limitation, the right has to be exercised within that period.
No case of interference is made out.
7. Petition is dismissed.
