TMI Blog2013 (8) TMI 226X X X X Extracts X X X X X X X X Extracts X X X X ..... on of condonation of delay is concerned. None of these authorities has decided the question on merit after the second round of litigation began – As per decision of D.R. Industries Ltd. v. Union of India [2008 (3) TMI 213 - HIGH COURT GUJARAT ] held that this Court has extraordinary powers in appropriate case to interfere even while upholding the contention that there is statutory limitation to which delay can be condoned by the authorities. In Senior Superintendent of Post Office v. Union of India [2012 (6) TMI 271 - GUJARAT HIGH COURT ], this court recognised that if an aggrieved person knocks the door of High Court seeking redressal under writ jurisdiction for valid reasons, to obviate extraordinary hardship and injustice such challenge can be entertained even beyond the period of limitation – Refund allowed – Decided in favor of Assessee. - Special Civil Application No. 5128 of 2011 - - - Dated:- 30-1-2013 - Akil Kureshi And Sonia Gokani, JJ. For the Appellant : Mr Hasit Dilip Dave, Adv For the Respondent : Mr Y N Ravani, Adv JUDGEMENT:- PER : Sonia Gokani By preferring this petition under Article 226 of the Constitution, the petitioner has sought the fol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee thrice who did not avail such opportunity of being heard in person. On noting that the principles of natural justice has been sufficiently followed, it decided the issue on the basis of the available evidence on record. The petitioner herein challenged the same before the Commissioner(Appeals) raising various grounds in such challenge. Such appeal was preferred on 3.8.2009 i.e. five months after the order impugned was passed. An application for condonation of delay was preferred along with the said appeal. It had been averred in the said application for condonation that the order in original had been received, but, was lost as the person concerned who received such an order did not file it at the proper place. Commissioner(Appeals) rejected this on the ground that there is delay of five months in filing the appeal. Invoking provisions of section 35 of the Central Excise Act, it held that it does not enjoy the powers to condone delay beyond a period of 30 days. 5. This was carried to the Tribunal by the petitioner which confirmed the order of the Commissioner(Appeals) relying on decision of Apex Court rendered in case of Singh Enterprises vs. CCE Jamshedpur reported ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... easons, to obviate extreme hardship or injustice, entertain a challenge even beyond the period of limitation prescribed. In the present case, however, we are not inclined to adopt such a course for the simple reason that the amount of service tax and penalty demanded is not very large. Further, in any case it is a question of payment of tax from one Central Government Department to another Central Government Department. Looking to the facts and circumstances of the case, we are not inclined to exercise extraordinary discretionary jurisdiction and, therefore, the petition is dismissed. 9. Learned counsel Shri Ravani appearing for the respondent has urged that this Court may not interfere in extraordinary jurisdiction in the instant case when there is no error in their concurrent views. He however, has not disputed that neither of the authorities i.e. the Commissioner (Appeals) and the Tribunal examined the issue on merits. He heavily relied upon the decision of the Apex Court rendered in case of Singh Enterprises vs. CCE Jamshedpur (supra) to substantiate his decision. He has also placed reliance upon the decision of the Apex Court in case of S.S. Rathore v. State of Madhya Prade ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y from a protracted period of litigation. We are satisfied that to meet the situation as has arisen here, it would be appropriate to hold that the cause of action first arises when the remedies available to the public servant under the relevant service Rules as to redressal are disposed of. 10. On thus hearing counsel for both the sides and on duly considering the submissions made, it can be noted at the outset that the petitioner herein when challenged the order of adjudicating authority, the second show cause notice was issued after once the refund had already been allowed and paid to him. Both the authorities have rejected the appeals of the petitioner on the ground of limitation. Both the authorities had relied upon the decision of Apex Court in so doing. We have already held as noted here-in-above that there is no quarrel that the power of Commissioner(Appeals) to condone the delay is of three months maximum. And, therefore, no fault can be found with the approach of both the authorities as far as question of condonation of delay is concerned. We are therefore, naturally not to interfere with the orders of both the authorities. We have gathered from the materials on record t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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