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2015 (8) TMI 787 - BOMBAY HIGH COURTCondonation of delay - Power of Commissioner to condone delay beyond the period of 60days - Tribunal also dismissed the appeal as barred by limitation - Violation of Art. 265 - Held that:- by a subsequent exercise which may have been favourable to the petitioner, we cannot term the earlier exercise, as unconstitutional or illegal. More so, when the duty of excise is sought to be recovered based on a show cause-cum-demand notice. If we are to scrutinize the correctness of the impugned Order-in-Original, we have to go into disputed questions of fact. All this is impermissible once the appeals to challenge this order have been dismissed. Thus, the Central Excise duty has been levied, assessed and recovered in terms of the law. That its assessment and recovery in the peculiar facts of the petitioner is questioned and challenged does not mean that the mandate of Article 265 of the Constitution of India, is violated. In the facts and circumstances peculiar to this case the direction imposing penalty deserves to be quashed and set aside. There was a clear legal issue and with regard to the power of the Commissioner to condone the delay beyond the stipulated period. Hence, no deliberate or intentional act can be attributed to the petitioner assessee. Further, considering its financial position, this Court had protected the petitioner by grant of interim relief. Therefore, we direct that the interest on duty amount shall be payable from the date of the demand till its deposit in pursuance of the order passed by this Court dated 18th October, 2006. No interest shall be payable from the date of deposit of the duty amount, till the disposal of this writ petition by the order passed - Penalty imposed if also set aside - Decided partly in favour of assessee.
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