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TMI Blog2015 (8) TMI 787X X X X Extracts X X X X X X X X Extracts X X X X ..... by the order passed by the Assistant Commissioner, is appealable to the Commissioner (Appeals). However, the appeal has to be filed within a period of sixty days from the date of communication of the order of the Assistant Commissioner/Order-in-Original. If the appeal is not filed within a period of sixty days, the Commissioner (Appeals) can condone the delay of thirty days beyond this stipulated period of sixty days provided he is satisfied that there is a sufficient cause shown by the aggrieved person. 3. In the present case, the Commissioner found that the appeal has been presented not only beyond the initial period of sixty days from the date of communication of the appeals, but even after the thirty days contemplated by the proviso to sub-section (1) of Section 35 of the Central Excise Act, 1944. In the circumstances, the Commissioner not been empowered to condone the delay, he has rightly dismissed the petitioner's appeal. It is this view of the Tribunal which is impugned before us. 4. Ms. Bhambwani appearing on behalf of the petitioner would submit that there is a complete misreading and misapplication of law by the Commissioner and the Tribunal. The Tribunal sho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the Commissioner had no power to condone it. This finding of fact is neither erroneous nor illegal. It cannot be termed perverse either. Therefore, the Writ Petition has no merit and must be dismissed. Further, the petitioner cannot rely on any subsequent adjudication and based on a distinct show cause notice. Even if some of the allegations are overlapping or common, the subsequent show cause notice and the order passed thereon by the adjudicating authority and the Appellate Authority is not something on which reliance can be placed by the petitioner to claim violation of mandate of Article 265 of the Constitution of India. There is a competency to levy, assess and recover the tax or duty. The exercise of powers while levying, assessing or recovering it may be erroneous but that does not make the levy or the tax illegal or unconstitutional. These two matters cannot be confused. Hence, looked at either way, the writ petition has no merits and must be dismissed. 8. We have, with the assistance of the counsel appearing for the parties, perused the writ petition and all annexures thereto. The petitioner proceeds to state that the Order-in-Original is dated 21st March, 2005. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Customs Act, 1962. Section 128(1) of the Customs Act, 1962, read as under : "128. Appeal to Commissioner (Appeals).- (1) Any person aggrieved by any decision or order passed under this Act by an officer of Customs lower in rank than a Commissioner of Customs may appeal to the Commissioner (Appeals) within sixty days from the date of communication to him of such decision or order : Provided that the Commissioner (Appeals) may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of sixty days, allow it to be presented within a further period of thirty days. (1A) The Commissioner (Appeals) may, if sufficient cause is shown, at any stage of hearing of an appeal, grant time, from time to time, to the parties or any of them and adjourn the hearing of the appeal for reasons to be recorded in writing: Provided that no such adjournment shall be granted more than three times to a party during hearing of the appeal. (2) Every appeal under this section, shall be in such form and shall be verified in such manner as may be specified by the rules made in this behalf." 11. After analysing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pt by authority of law. Ms. Bhambwani would not dispute that the tax that is sought to be levied and collected in this case namely the duty of excise is authorized by the Central Excise Act, 1944. The tax is, thus, levied or collected by the authority of law. There is no challenge to the law nor to the competence of the Parliament to legislate and enact it. Therefore, this Article is of no assistance in the present case. The mandate thereof is sought to be pressed into service on the footing that on the same set of allegations another show cause notice came to be issued to the petitioner and which was adjudicated. After the same was adjudicated and the Order-in-Original was passed based on the same, the said order dated 23rd November, 2005 was challenged before the Commissioner (Appeals) Central Excise, Mumbai and the Appellate Authority has allowed the appeal of the petitioner on 26th July, 2006. Therefore, on the same set of allegations but for a subsequent period or duration the petitioner had succeeded in resisting the demand. In the circumstances, the tax purportedly levied, assessed and recovered is contrary to and without authority of law. 14. We are unable to agree wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emsp;As a result of the above discussion, we do not find that any assistance can be derived from the law laid down in the case of State of Kerala (supra), there, a tax was sought to be recovered and under the relevant State law. A group of appeals to the Supreme Court questioned the correctness of the order passed by the High Court of Kerala holding that Kerala Building Tax Act (19 of 1961), is ultra vires, because the legislature has infringed the equality clause of the Constitution. Dealing with such an issue and controversy that the Hon'ble Supreme Court relied on the mandate of Article 265 of the Constitution of India. We do not find that the observations in paragraph 3 of this judgment can assist the petitioner before us. Resultantly, the writ petition has no merit. It is dismissed. Rule is discharged. 16. At this stage, Ms. Bhambwani submits that in the light of the order passed by this Court on 18th October, 2006, the petitioner having deposited the duty amount of Rs. 4,28,777/- within the time stipulated in this Court's order, interest and penalty should be waived. 17. This request is opposed by Mr. Bhosale, urging that the writ petition is now dismissed, theref ..... 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