TMI Blog2014 (3) TMI 714X X X X Extracts X X X X X X X X Extracts X X X X ..... sidered the case of the petitioner for invoking the extra ordinary writ jurisdiction. In the present case, however, we find that the explanation for delay itself is insufficient. Counsel for the petitioner stated that the consultant was instructed to file appeals on behalf of both the entities and only due to oversight, he preferred one appeal. - Such general statement would not explain such inordinate delay. Particularly when the statute puts a lid on the number of days of delay that the Commissioner can condone beyond which the appeal simply cannot be entertained, it would not be possible to ignore such a long delay on mere explanation that under a bonafide impression that the consultant would have filed appeal or that the appeal of Gujarat Polyfilms would cover the case of the petitioner as well - Decided against assessee. - Special Civil Application No. 10330 of 2013 - - - Dated:- 6-2-2014 - Akil Kureshi And Sonia Gokani,JJ. For the Appellant : Mr. Paresh M. Dave, Adv. For the Respondent : Mr. Gaurang H. Bhatt, Adv. JUDGMENT (Per : Honourable Mr. Justice Akil Kureshi) 1. Petitioners made following prayers:' 17. In the above premises, the peti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner company as a merchant exporter lodged rebate claims upon receiving documents of proof of export. These debate claims were not decided by the Revenue authorities. Show cause notice was issued on 25.1.11, why rebate claim should not be rejected and penalty should not be imposed on M/ s.Gujarat Polyfilms. The Deputy Commissioner of Central Excise passed order dated 28.6.2011 rejecting the rebate claim of the petitioner on the ground that permission for sending yarns for weaving on job work basis was allowed to M/ s.Gujarat Polyfilms and further permission for sending unprocessed fabrics for dyeing and printing was issued on 29.3.07 whereas M/ s.Gujarat Polyfilms had sent unprocessed fabrics to the job workers for dyeing and printing before that and therefore, cenvat credit taken on inputs used for such fabrics was not admissible. The Deputy Commissioner also imposed penalty of Rs.5,000 /- on M/ s.Gujarat Polyfilms. 3. M/ s.Gujarat Polyfilms filed appeal before the Commissioner (Appeals) on 18.7.2011 raising several grounds. No appeal was filed by the present petitioner. According to the petitioner, under wrong impression that the appeal on behalf of the petitioner company has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atisfied that the appellant was prevented by sufficient cause from presenting the appeal within the said period of 60 days, allow it to be presented within a further period of 30 days. Thus, the statute in addition to providing limitation of 60 days in preferring an appeal before the Commissioner, gives discretion to him to condone delay in preferring the appeal on sufficient ground upto a further period of 30 days. The statute thus does not permit condonation of delay beyond the said period. Such statutory provisions have come up for consideration before various courts including the Supreme Court on various occasions. In the case of Commissioner of Customs Central Excise v. Hongo India (P) Ltd. 236 ELT 417 (SC) the Supreme Court held that High Court has no power to condone delay beyond the maximum extendable under the Excise Act and section 5 of the Limitation Act would not apply in such a situation. This view is subsequently followed by the Supreme Court on number of occasions. In that view of the matter, the Commissioner was perfectly justified in refusing to entertain the appeal of the petitioner which was filed number of months beyond the period of 60 days plus 30 days, whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he view that in such extraordinary cases where an assessee can show extra ordinary circumstances explaining the delay and also gross injustice done by the adjudicating authority, the assessee may invoke the writ jurisdiction of this Court. Hence, in cases where the assessees have suffered gross injustice and they could not file appeals before the Commissioner (Appeals) within a period of 90 days from the date of communication of the order-in-original on account of circumstances beyond their control, such assessees can invoke the powers of this Court under Article 226 of the Constitution but, of course, not as a matter of right. 6. In the present case, we record that delay was sufficiently explained. We are also prima facie of the opinion that the Tribunal's decision in case of M/s. Lathia Industries Suppliers (supra), does touch on the aspect of the matter. However, this shall have to be verified by the adjudicating authority with the assistance of the petitioner. This modality was applied in the case of Amitara Industries Ltd. v. Union of India, in order dated 30th January 2013 in Special Civil Application No.6069 of 2011 making following observations: 12. In the i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pproached the said appellant for purchase of goods for exports. The said appeal therefore was only by M/ s.Gujarat Polyfilms. No contrary intention could be seen from the entire statement of facts and the reply of the appellant. It is true that in the prayer in addition to the request for quashing the order of the Deputy Commissioner, it was also prayed that pending rebate claims of Rs.8.07 lacs be sanctioned. This one line statement would not convert the appeal of M/ s.Gujarat Polyfilms into one filed by the present petitioner. If this were so, there was no occasion for the petitioner to file a separate appeal and could easily have sought amendment of technical nature before the appellate Commissioner and pressed its own appeal. 11. In the appeal filed by the petitioner much belatedly, to explain the delay all that was stated was as under: 4. There is delay in filing the Appeal by oversight. When M/ s.Gujarat Polyfilms Pvt. Ltd. filed an Appeal against this order, we thought that we also have filed the same with them. Before us in the present petition also, to explain the delay, it is stated that the petitioner was under a genuine and bonafide impression that appeal was ..... X X X X Extracts X X X X X X X X Extracts X X X X
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