Uttam Sucrotech Internation (P) Ltd v. Union of India & Anr

MANMOHAN, J JANUARY 7, 2011 Pk/dk

* IN THE HIGH COURT OF DELHI AT NEW DELHI Judgment Reserved on: 20th December, 2010 % Judgment Pronounced on: 7th January, 2011 + W.P.(C) 8084/2010 M/S UTTAM SUCROTECH INTERNATIONAL (P) LIMITED ..... Petitioner Through: Mr. Dinesh Kumar Gupta, Advocate versus UNION OF INDIA & ANR. ..... Respondents Through Ms. Rajdipa Behura, Mr.C.S. Chauhan, Advs. for R-1 Mr. Mukesh Anand, Adv. for R-2 CORAM: HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE MANMOHAN 1. Whether reporters of the local papers be allowed to see the judgment? Yes 2. To be referred to the Reporter or not? Yes 3. Whether the judgment should be reported in the Digest? Yes DIPAK MISRA, CJ Invoking the extraordinary and inherent jurisdiction of this Court under Articles 226 and 227 of the Constitution of India, the petitioner has prayed for issue of a writ of certiorari for quashment of the order No. 137/10-CX dated 8.1.2010 passed by the Joint Secretary of the Government of India, Ministry of Finance, whereby he has concurred with the order dated 8.6.2007 passed by the Commissioner, Customs and Central Excise, the second respondent herein, who had dismissed the appeal preferred by the petitioner under Section 35 of the Central Excise Act, 1944 (for brevity "the Act") on the ground that the appeal was barred by limitation. 2. The facts which are essential to be stated for adjudication of this petition are that the petitioner, a company incorporated under the Companies Act, 1956, is a merchant exporter and engaged in the export of various engineering goods under Rule 19 of the Central Excise Rules, 2002. It had executed bond with the respondents for exporting the goods by purchasing manufactured excisable goods duty free on the basis of CT-1 issued from time to time by the respondents. It had submitted necessary documents on 28.7.2004 and 19.10.2004 which had been scrutinized by the respondents and thereafter show cause notice No.6 dated 25.7.2005 and show cause notice No.9 dated 30.09.2005 had been served on the petitioner company. The petitioner explained all queries which were made in the aforesaid show cause notices in its replies dated 24.08.2005 and 04.10.2005 and made a prayer to the respondents to drop the proceedings and to withdraw the show cause notices. 3. As put forth, the adjudicator, namely, the Assistant Commissioner of Central Excise, dealt with the show cause notices jointly and issued an order dated 22.8.2006 making a demand of Rs.3,29,819/- in terms of the provisions of Section 11-AC of the Act. 4. The aforesaid composite order passed on 22.8.2006 was received by the petitioner on 29.8.2006 against which the petitioner preferred an appeal on 28.11.2006. The second respondent by order dated 8.6.2007 came to hold that the appeal had been preferred on the 91st day, one day beyond the condonable period of limitation and, accordingly, rejected the application for condonation of delay which was filed along with the memorandum of appeal. 5. Grieved by the aforesaid order, the petitioner company preferred a revision before the first respondent who by the impugned order contained in Annexure "F" without adverting to the merits of the case gave the stamp of approval to the order passed by the first appellate authority on the basis that the appeal was barred by time as the delay was not condonable by the appellate authority. 6. In the writ petition, though numerous averments have been made contending, inter alia, that the petitioner is entitled to exemption and the demand made by the authorities is totally unsustainable, yet the gravamen of the stand that arises for consideration is whether the respondent No.2 was justified in rejecting the appeal on the ground that delay was non-condonable and the revisional authority was correct in treating the said order as impeccable. 7. We have heard Mr. Dinesh Kumar Gupta, learned counsel for the petitioner and Ms. Rajdipa Behura along with Mr. C.S. Chauhan, learned counsels for respondent No.1 and Mr. Mukesh Anand, learned