TMI Blog2015 (8) TMI 787X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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. - Writ Petition No. 3031 of 2006 - - - Dated:- 26-2-2015 - S.C. Dharmadhikari and Sunil P. Deshmukh, JJ. Ms. Asha Bhambwani, Advocate, for the Petitioner. Shri A.S. Rao a/w. S.D. Bhosale, Advocate, for the Respondent. ORDER This Writ Petition under Article 226 of the Constitution of India challenges the order passed by the Commissioner (Appeals) dated 23rd February, 2006 and that of the Customs, Excise and Service Tax Appellate Tribunal dated 24th August, 2006. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tioner is able to demonstrate a clear violation of the mandate of Article 265 of the Constitution of India, then, merely because the alternate remedy has not been availed of or availed of unsuccessfully, this Court is not prohibited from granting the relief. The tax has been collected without authority of law and is illegal. This is demonstrated by the fact that on the same allegations another show cause notice was issued by the Department/Revenue. That was contested by the petitioner. The petitioner has succeeded before the Commissioner (Appeals) and order passed by him, copy of which is at page 84 of the paper book dated 26th July, 2006, would demonstrate that there was no authority to levy, assess and recover excise duty. In the circumstances, this Court should entertain the petition and grant the relief even in relation to prior show cause notice and prior demand. That is because the petitioner has demonstrated that the allegations in both show cause notices are identical. The demand is based on the same set of allegations. In the circumstances, this writ petition be allowed. 6. Ms. Bhambwani places strong reliance upon the judgment of the Hon ble Supreme Court in the case o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by any decision or order passed under this Act by a Central Excise Officer lower in rank than a Principal Commissioner of Central Excise or Commissioner of Central Excise may appeal to the Commissioner of Central Excise (Appeals) [hereafter in this Chapter referred to as the Commissioner (Appeals)] within sixty days from the date of the 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. 9. Once the Appeal to challenge the Order-in-Original dated 23rd March, 2005, was presented on 1st August, 2005, which period is admittedly beyond 90 days, then, the Commissioner had no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nson and Johnson (supra). That decision of the Hon ble Supreme Court makes detailed reference to several decisions rendered either by two Judge or three Judge Bench of the Hon ble Supreme Court. The Hon ble Supreme Court proceeds to hold that when applicability of Section 5 of the Limitation Act is not absolute, but circumscribed or restricted, then, the statutory provision restricting or circumscribing it must be given effect to in the light of clear language of sub-section (2) of Section 29 of the Limitation Act, 1963. In other words, Sections 4 to 24 (inclusive) shall apply only insofar as and to the extent to which they are not excluded by the special or local law. In our case, beyond further period of 30 days and total period of 90 days, there is no further application of Section 5 of the Limitation Act, 1963. The extent to which Section 5 can be applied having been enumerated and set out in Section 128(1) of the Customs Act, 1963, which is a special law, then, for the further delay in filing or presenting the appeal, applicability of Section 5 of the Limitation Act, 1963 is expressly ruled out. The language of Section 128(1), which is a special law, therefore cannot be ignore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner (Appeals) dismissing it, as time barred, is in issue before us. That order passed by the Commissioner dated 23rd February, 2006 has been confirmed by the Tribunal. The order of the Commissioner was dealing with an appeal against the order of the Assistant Commissioner, Central Excise dated 23rd March, 2005, a copy of this order is at Annexure-D to the writ petition. That pertains to a show cause notice dated 8th October, 2004. Hence, it is the prior adjudication and the orders in furtherance thereof which are challenged before us. They could not be challenged successfully by the petitioner is the admitted position. The petitioner is trying to get over the period of limitation in law by questioning these orders in a writ petition under Article 226 of the Constitution of India before this Court and relying upon the mandate of Article 265 of the Constitution of Indian in that context. We are of the opinion 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 scrutini ..... X X X X Extracts X X X X X X X X Extracts X X X X
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