TMI Blog2015 (9) TMI 1026X X X X Extracts X X X X X X X X Extracts X X X X ..... ner’s ground of no opportunity by the adjudicating authority also requires consideration. This Court has in the past taken a view that even though in cases where the Commissioner is powerless to condone the delay beyond the prescribed period, the High Court is not devoid of its jurisdiction under Article 226 of the Constitution of India in rare exceptional cases to examine the validity and legality of the order of the adjudicating authority. Very base order was passed without proper notice of hearing to the petitioner, such order is set aside. Proceedings are traced back to the adjudicating authority for fresh consideration and disposal in accordance with law. - Special Civil Application No. 14778 of 2014 - - - Dated:- 18-12-2014 - M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nst such order, the petitioner preferred appeal before the Tribunal. The Tribunal by an order dated 1st June 2012 dismissed the appeal confirming the view of the Commissioner. The petitioner preferred further appeal before the High Court but withdrew the same for filing a writ petition on 31st July 2014. 4. Learned counsel Shri Dhaval Shah for the petitioner submitted that the adjudicating authority had passed the said order without participation of the petitioner. The petitioner has been contending that no notice of hearing was served on the petitioner. The petitioner, therefore, could not remain present personally or through authorized representative. The entire proceedings, therefore, went exparte. 6. The case rests on peculiar fac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d which he could have condoned the delay. Nevertheless, as held by the Division Bench of this Court in case of D.R. Industries and Anr. v. Union of India and Ors. reported in 2008(3) GLH 662, such a situation would not prevent the High Court in appropriate case examine the validity of the order-inoriginal itself. This is however, hedged by two requirements. On that delay is otherwise well explained and the Court finds that non consideration of the issues would result into gross injustice. The Court observed as under : 19. As regards the contention that there may be extra-ordinary cases where assessees may not be in a position to challenge the order of the adjudicating authority before the Commissioner (Appeals) within a period of 90 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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