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2015 (10) TMI 2279 - BOMBAY HIGH COURT

2015 (10) TMI 2279 - BOMBAY HIGH COURT - 2015 (325) E.L.T. 867 (Bom.) - Restoration of appeal - Appeal barred by limitation - Held that:- Joint Commissioner's order which was challenged is dated 1st April, 2007. That was challenged before the Commissioner (Appeals) Central Excise and Customs, Vapi. Before the Commissioner, the argument was that the appeal is not barred by limitation as the petitioner had no knowledge of the order of the Joint Commissioner. It was in winding up inasmuch as the BI .....

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sible for the petitioner to have been aware of an order stated to be pasted on its factory gate. Once all operations were closed and the factory was not operating, then, the appeal filed before the Commissioner (Appeals) could not be said to be barred by limitation.

Once the earlier dismissal of the appeal on merits was exparte, then, the Tribunal could have, by some conditions being imposed, recalled the order and gave a chance to the appellant-petitioner to argue the appeal on its .....

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- 19-10-2015 - S. C. Dharmadhikari And B. P. Colabawalla, JJ. For the Petitioner : Mr. Prakash Shah with Mr. Jas Sanghvi For the Respondent : Mr A S Rao ORDER P. C. 1. The Customs, Excise and Service Tax Appellate Tribunal, West Zonal Bench, Ahmedabad, has passed an order on 2nd April, 2009 and 11th April, 2014, refusing to hear the petitioner's appeal on merits. That is how this Writ Petition is filed. 2. Very brief facts need to be noted as the point raised in this petition is stated to be .....

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he company is not viable. It, therefore, recommended winding up of the petitioner-company in the month of November, 2006. In January, 2007, that was treated as an application by this Court for winding up of the petitioner-company. The petitioner also states in paragraph 7 of this petition as to how it stopped all activities, including production and giving a closure notice. It is stated that after the winding up proceedings were commenced, the Commissioner, Central Excise and Customs passed an o .....

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als). It was filed on 3rd September, 2007. It is stated that the Commissioner (Appeals) proceeded to dispose of the said appeal. That was disposed of, according to the petitioner, not on merits, but on the point that it was barred by limitation. 5. Then the petitioner approached the Tribunal and the Tribunal initially found that this is not a case where the request of the petitioner-appellant to grant a relief as prayed. Rather, in the Memo of this petition the petitioner averred that the petiti .....

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rned DR and has gone through the impugned order. 2. It is seen that Commissioner (Appeals) has dismissed the appeal as barred by limitation on the ground that he has no powers to condone the delay beyond the condonable period prescribed in the statute. I find law is no more res-integra and stands settled by following decisions : 1. Maithan Ceramic Limited Vs. C.C.E. Jamshedpur [2002 (145) E.L.T. 394 (Tri.- LB)] 2. Raja Mechanical Company Pvt. Ltd. Vs. C.C.E. [2002 (144) E.L.T. 36 (Del.)] 3. Sing .....

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he Tribunal for hearing on merits and in accordance with law. The reason was that the company continued in winding up. It continued to be so from the date of the initial order passed by this Court on 22nd March, 2007, till 9th May, 2013. Once the petitioner came out of winding up, then, it realised that there were several legal proceedings which remained unattended. The petitioner company was fully concentrating on the winding up proceedings and during its subsistence and when the Provisional Li .....

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as dismissed. Secondly, the Tribunal found that the appeal was dismissed by the Bench on finding that the First Appellate Authority has no power to condone the delay beyond the period within which the assessee has to file an appeal before the Appellate Authority under section 35 of the Central Excise Act, 1944. The Tribunal found that whether liquidation or otherwise, the ratio of the judgment of the Hon'ble Supreme Court in the case of M/s. Singh Enterprises vs. Commissioner of Central Exci .....

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itioner-appellant. Though the application sought restoration of the appeal, this application was dismissed and equally the appeal with some additional reasons. 7. Mr. Prakash Shah appearing for the petitioner would submit that the facts and circumstances in this case are identical to those mentioned in the judgment of the Hon'ble Supreme Court in the case of Balaji Steel Re-Rolling Mills vs. Commissioner of Central Excise & Customs reported in 2014 (3) Excise Law Times, 209 . It is submi .....

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ed in the petitioner's case will also be, therefore, distinguishable on facts. Hence, the petition be dismissed. 9. After hearing both sides, we find that the Joint Commissioner's order which was challenged is dated 1st April, 2007. That was challenged before the Commissioner (Appeals) Central Excise and Customs, Vapi. Before the Commissioner, the argument was that the appeal is not barred by limitation as the petitioner had no knowledge of the order of the Joint Commissioner. It was in .....

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osed. It is, therefore, impossible for the petitioner to have been aware of an order stated to be pasted on its factory gate. Once all operations were closed and the factory was not operating, then, the appeal filed before the Commissioner (Appeals) could not be said to be barred by limitation. It is this argument which was rejected by the Commissioner (Appeals) by his order passed on 31st July, 2008. 10. Against such an order, the petitioner approached the CESTAT at its West Zonal Bench at Ahme .....

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ence by the Tribunal and that the application for restoration was filed. We do not know how that first application for restoration was dealt with but what one finds is that on 1st April, 21014, on the second restoration application dated 9th May, 2013, the Tribunal passed the following order : "3. Heard Learned DR. 4. First and foremost it is noticed that the appellant had filed similar application for Restoration of Appeal on 11.8.2003 against the order dated 29.5.2009; which was dismissed .....

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ed that in the presence of the security guard of the company, the impugned order was pasted on the gate of the factory, and the appeal was filed almost after 6 months. 5. In view of the foregoing I do not find any reasons in adjourning the matter and hence dismiss the application filed by the appellant for the Restoration of Appeal." 11. Once the Tribunal has confirmed the dismissal of the appeal earlier by additional grounds, then, we are of the opinion that in the facts and circumstances .....

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