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2019 (2) TMI 941 - HC - Central ExciseCondonation of delay of 121 days in filing the appeals - power of the CCE(A) to condone the delay - whether the assessee was entitled to file writ petitions challenging the said common Order-in-Original dated 29.2.2016 after having lost before this Court in CMA.Nos.1691 to 1700 of 2018 dated 07.8.2018, by which, the appeals filed by the assessee were dismissed confirming the orders passed by the Tribunal, which upheld the decision of the CCE(Appeals) rejecting the appeals filed by the assessee as barred by limitation? - Held that:- An identical issue was considered by the Hon'ble Full Bench of the Andhra Pradesh High Court in the case of Electronic Corporation of India Limited [2018 (3) TMI 767 - TELANGANA & ANDHRA PRADESH HIGH COURT] wherein a reference was made by a Division Bench to the Full Bench raising a question as to whether the decisions of the Division Bench in the case of M/s.Resolute Electronics Private Limited Vs. Union of India [2015 (4) TMI 422 - ANDHRA PRADESH HIGH COURT] and in the case of Star Enterprises Vs. Joint Commissioner, Guntur [2015 (4) TMI 40 - ANDHRA PRADESH HIGH COURT] require reconsideration. In the decision in the case of Electronic Corporation of India Limited, the first question was answered against the assessee thereby holding that the period of limitation provided under Section 35 of the Act can be extended only upto 30 days as provided by the Proviso and it cannot be extended beyond 90 days. Statutory remedy or appeal under Section 35 of the Act - Held that:- Admittedly, the assessee, while responding to the show cause notices, which we find as periodical notices, did not specifically canvass the issue, which they raised in the writ petitions namely challenging the jurisdiction of the Authority to impose equal penalty for the period from March 2008 to March 2010. Secondly, the assessee did not raise the contention, which was raised in the writ petitions stating that equal penalty could not have been imposed for the period from 01.4.2010 to 31.1.2015 since there is no allegation in the show cause notices that there is any willful misstatement, fraud, collusion, etc with an intention to evade payment of duty. We find that while replying to the show cause notices, the assessee canvassed the merits of the matter stating that the demand itself is not maintainable - the issue, which has been raised by the assessee before us and in the writ petitions, touches upon the jurisdiction of the Adjudicating Authority to impose equal penalty for the period upto 31.3.2010 and whether circumstances warrant imposition of equal penalty post 31.3.2010. Thus, for the period from 01.4.2010, mens rea requires to be established to impose equal penalty. In our considered view, the issues as to whether equal penalty was imposable or in other words, whether the Adjudicating Authority had jurisdiction to impose equal penalty for the period prior to 31.3.2010 and as to whether facts warranted imposition of equal penalty for the period from 01.4.2010 are definitely issues touching upon the jurisdiction of the Authority to take a decision in the matter - thus, the assessee has made out a case for interference of the said common Order-in-Original in exercise of the powers under Article 226 of The Constitution of India, as we are prima facie satisfied that the Adjudicating Authority assumed jurisdiction, which has been shown to be not in existence for the period upto 31.3.2010. Petition allowed.
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