Calcutta High Court
Websol Energy Systems Ltd vs Commissioner Of Cent. Excise on 6 August, 2025
Author: T.S. Sivagnanam
Bench: T.S. Sivagnanam
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OD - 5
IN THE HIGH COURT AT CALCUTTA
Special Jurisdiction [Central Excise]
ORIGINAL SIDE
CEXA/6/2011
WEBSOL ENERGY SYSTEMS LTD.
VS
COMMISSIONER OF CENT. EXCISE, KOL -III, COMMISSIONERATE & ORS
BEFORE :
THE HON'BLE CHIEF JUSTICE T.S. SIVAGNANAM
And
THE HON'BLE JUSTICE CHAITALI CHATTERJEE (DAS)
Date : 6th August, 2025
Appearance :
Mr. Uday Shankr Bhattacharya, Adv. (VC)
Ms. Aishwarya Rajyashree, Adv. (VC)
Ms. Banani Bhattacharya, Adv.
...for the respondent.
The Court : This appeal filed by the appellant under section 35G of the Central
Excise Act, 1944 is directed against the order dated 29.4.2008 passed by the Customs,
Excise and Service Tax Appellate Tribunal, Eastern Regional Bench, Kolkata (Tribunal)
in Miscellaneous Application No.289/2007, Stay Petition No.417/2007 and Excise
Appeal No.430/2007.
The appeal was admitted on 10.8.2011 on the following substantial questions of
law :
“1) Whether the learned Tribunal below committed substantial error of law in dismissing
the application for condonation of 180 days delay by demanding a higher standard of
proof than one required for being successful in such an application.
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2) Whether the learned Tribunal below committed substantial error of law by overlooking
the fact that the Revenue did not dispute the averment made the application for
condonation of delay by filing any affidavit-in-opposition in spite of giving opportunity
and, thus, on the basis of uncontroverted averment made in the application, it was a fit
case for allowing the application.”
None appears for the appellant. We have heard Mr. Uday Shankar Bhattacharya,
learned senior standing counsel appearing for the respondent assisted by Ms.
Aishwarya Rajyashree, learned advocate.
The appellant/assessee filed the appeal before the Tribunal challenging the
Order-in-Appeal No.65/Kol-III/2006 dated 31.8.2006 passed by the Commissioner
(Appeal – I), Central Excise, Kolkata. The said appeal was filed by the
appellant/assessee challenging the Order-in-Original No.2/Demand/05 dated
25.7.2005 passed by the Assistant Commissioner, Central Excise, Dumdum – 2 Division,
Kolkata – III Commissionerate confirming the demand of Rs.3,27,507/- under section
11A of the Act, imposing an equivalent amount of penalty in terms of the provisions of
section 11AC and charging interest at appropriate rate under section 11AB. The
appellate authority by order dated 31.8.2006 dismissed the appeal.
Aggrieved by such order, the assessee filed an appeal before the learned
Tribunal. The appeal before the learned Tribunal was not filed within the period of
limitation but there was a delay of 180 days in filing the appeal. An explanation was
offered by the assessee stating that the order passed by the appellate authority was
received by a dealing assistant who did not bring it to the notice of the management
and the dealing assistant left the organisation in December 2006 and the person who
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was subsequently appointed had traced out the order and the appeal was filed. The
Department did not file any affidavit in opposition before the learned Tribunal
objecting to the reasons given by the assesee for not able to prefer the appeal within the
period of limitation. However, before the learned Tribunal the Department
representative opposed the prayer for condonation of delay and stated that the reasons
given are baseless and if it is accepted by the learned Tribunal, it will cause irreparable
injury to the revenue.
At this juncture, we can take judicial notice of the fact that seldom the
Department files their appeal within the period of limitation before this Court and
many a times this Court has exercised discretion and condoned the delay as this Court
while considering the appeal was required to consider as to whether any question of
law arises for consideration. That apart, the delay of 180 days cannot be stated to be
inordinate nor the appellant/assessee can be stated to have been not diligent in
prosecuting the matter. The appellant had contested the show cause notice issued by
the Assistant Commissioner, Central Excise and submitted written submissions before
the adjudicating authority and personal hearing which was granted on 18.8.2004 cannot
be stated to have been not diligent to put forth their submissions before the adjudicating
authority. The adjudicating authority having held against the appellant/assessee by
passing Order-in-Original dated 25.7.2005, the appellant immediately preferred appeal
before the Commissioner (Appeals) contesting the adjudication order on merits.
However, the appeal was dismissed by the appellate authority. Against which, the
assessee preferred appeal before the Tribunal. The learned Tribunal being the last fact
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finding authority in the hierarchy of authorities as provided under the provisions of the
Central Excise Act, 1944, the remedy before the learned Tribunal is not only an
efficacious remedy but an effective remedy. This is more so because if the assessee is
aggrieved by the order passed by the Tribunal and prefers an appeal before this Court
under section 35G of the Act, the Court can consider the appeal only if a substantial
question of law arises for consideration. Therefore, we are of the view that the appellant
should be granted an opportunity to contest the matter on merits so as to enable the
learned Tribunal to take a decision on merits after considering the submissions of the
appellant/assessee.
For the above reasons, the appeal is allowed. The impugned order passed by the
learned Tribunal is set aside and the delay in filing the appeal is condoned and the
appeal is directed to be restored to the file of the learned Tribunal to be heard and
decided on merits in accordance with law.
Upon the appeal being restored, the Registry of the learned Tribunal shall serve
notice on the appellant/assessee as well as the Department and thereafter proceed to fix
a date for hearing of the matter. Consequently, the substantial questions of law are left
open.
(T.S. SIVAGNANAM, CJ.)
(CHAITALI CHATTERJEE (DAS), J.)
S.Das/
AR[CR]
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