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Satish Kumar Sharma Versus Union of India and Ors.

2015 (8) TMI 1257 - CALCUTTA HIGH COURT

Delay in filing an appeal before Commissioner (appeals) - condonation of delay - delay even beyond the statutory period of limitation prescribed in section 35 - The question is whether the appellant can challenge the order passed by the Additional Commissioner, as there is patent illegality as contended by the appellant, and calls for intervention in the writ jurisdiction.

Held that:- In our view, if we accept the submission of the appellant that the writ petition challenging the orde .....

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ation does not render the right of a litigant bad in law but it merely prohibits him from pursuing his remedy beyond a point of time. Hence, the judgments relied on behalf of the appellant are not applicable.

Appeal dimsissed - Decided against the assessee. - M.A.T. 425 of 2015 - Dated:- 17-8-2015 - SOUMITRA PAL & MIR DARA SHEKO, JJ. Mr. N.K. Chowdhury, Mr. Arijit Chakraborty, Mr. Debaditya Banerjee For the appellant. Mr. Pradip Kumar Roy, Mr. K.K. Maity For the respondents. ORDE .....

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inal is palpably illegal and contrary to the judicial pronouncement and, therefore, the writ petition is otherwise maintainable. Much argument is advanced to convince the Court that it is an exceptional case and the justice demands the interference and invocation of power of judicial review. In view of the ratio laid down in Shyam Sundar Sarma (supra), the order of the sub-ordinate authority must be the order of the higher authority upon rejection of an application seeking condonation of delay. .....

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er of the Appellate Authority as the order-in-original has merged into it. The writ petition, therefore, fails. It appears that a writ petition was filed challenging the order dated 30th November, 2012 passed by the Additional Commissioner, Central Excise and Service Tax Commissionerate, Bolpur, whereby the demand of service tax of ₹ 12,65,335/- was confirmed, interest was charged and penalty was imposed and the noticee, the appellant herein, was directed to have service tax registration f .....

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(P) Ltd. -vs- Commissioner of C.EX. Delhi- I,: 2012(279) E.L.T. 481(S.C.) particularly in paragraph 12 thereof, as the order dated 30th November, 2012 passed by the Additional Commissioner does not merge with the order passed by the Commissioner, the order of the Additional Commissioner stands. Since the order of the Additional Commissioner is ex facie bad, in view of the exceptional circumstances as made out in the writ petition, the learned Single Judge should have issued appropriate writ for .....

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.T. 460(Guj.), JCB India Limited -vs- Union of India : 2014(301) E.L.T. 209 (P & H), Himgiri Ispat Pvt. Ltd. -vs- Customs, Excise & Service Tax : 2014 (305) E.L.T. 36 (Uttarakhand), Texcellence Overeseas -vs- Union of India : 2013 (293) E.L.T. 496 (Guj.), Hans Metal Pvt. Ltd. -vs- Union of India : 2010 (254) E.L.T. 546(All.) and D.R. Industries Ltd. & Anr. -vs- Union of India and Ors. 2008(229) E.L.T. 24 (Guj.),. Reliance has also been placed on an unreported judgment delivered on 27 .....

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lient is ready and willing to deposit the entire demand of service tax as a condition precedent for a fresh hearing before the Additional Commissioner. Mr. Pradip Kumar Roy, learned advocate appearing for the respondents submits that since section 35(1) of the Central Excise Act, 1944 prescribes the time limit for preferring statutory appeal and also the time limit for condoning the delay in preferring such statutory appeal, in view of the judgment of the Full Bench in Union of India -vs- Jagadi .....

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on or order passed under this Act by a Central Excise Officer lower in rank than a Commissioner of Central Excise may appeal to the Commissioner of Central Excise (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 fu .....

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tatutory period of limitation prescribed in section 35. Hence, the Commissioner was justified in passing the order dismissing the appeal on the point of limitation. Since the Commissioner had dismissed the appeal on the point of limitation, as Supreme Court in Raja Mechanical Company Pvt. Ltd (supra) had held that if for any reason an appeal is dismissed on the ground of limitation and not on merits, that order would not merge with the orders passed by the first appellate authority (paragraph 12 .....

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