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NICE CONSTRUCTION Versus UNION OF INDIA AND 2

2016 (2) TMI 255 - GUJARAT HIGH COURT

Condonation of delay in filing an appeal before Commissioner (Appeal) - writ petition - jurisdiction to entertain a writ petition under Article 226 of the Constitution - Held that:- In the present case, quite apart from the petitioner presenting the appeal beyond the period what the Commissioner could condone, had simply not responded to the show-cause notice issued by the adjudicating authority. We have noticed that after receipt of show-cause notice, for months together, petitioner filed no re .....

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nduct of the petitioner would dissuade us from entertaining these petitions. - Decided against the appellant. - SPECIAL CIVIL APPLICATION NO. 6407 of 2015, SPECIAL CIVIL APPLICATION NO. 6409 of 2015 - Dated:- 3-2-2016 - MR. AKIL KURESHI AND MR. MOHINDER PAL, JJ. FOR THE PETITONER : MR NIRAV P SHAH, ADVOCATE FOR THE RESPONDENT : MR RJ OZA, ADVOCATE ORDER (PER : HONOURABLE MR.JUSTICE AKIL KURESHI) 1. The petitioner was engaged in construction activities. The petitioner was liable to pay service ta .....

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espite which, no one appeared for the petitioner before the adjudicating authority. The authority, therefore, finally passed order dated 27.08.2013 confirming the duty demand with interest and penalties. Against such order, statute provided appeal to the Appellate Commissioner which could be presented within 60 days. The statute also enabled the appellate authority to condone delay to a maximum of 30 days on the appellant showing sufficient cause preventing it from presenting appeal within the p .....

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umstances. 2. Learned counsel for the petitioner submitted that, even if the Commissioner had no power to condone the delay, the Court could, in exercise of writ jurisdiction under Article 226 of the Constitution, examine the legality and propriety of the order in original passed by the adjudicating authority. Such a view has been consistently taken by this Court in large number of decisions rendered by Division Benches. The issue came to be finally settled upon reference made to three Judge Ben .....

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n negative to the extent that the petition under Article 226 of the Constitution would not lie for the purpose of condonation of delay in filing the appeal. (3) On the third question, the answer is in affirmative, but with the clarification that- (A) The petition under Article 226 of the Constitution can be preferred for challenging the order passed by the original adjudicating authority in following circumstances that (A.1) The authority has passed the order without jurisdiction and by assuming .....

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xercise is discretionary which will be governed solely by the dictates of the judicial conscience enriched by judicial experience and practical wisdom of the judge. 3. Counsel further contended that, on the raw material consumed by the petitioner in construction work, there was exemption of 67% of the value from payment of service tax. The adjudicating authority had adopted figures available in the balance-sheet of the petitioner-company. If the appropriate exemption notification was applied by .....

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hat, as held by the Larger Bench in case of Panoli Intermediate (India) Pvt. Ltd. vs. Union of India (supra), this Court would have jurisdiction to entertain a writ petition under Article 226 of the Constitution in order to examine the validity and legality of an order in-original even when the appeal period and the expendable period had lapsed. However, while examining such petitions, the Court would always bear in mind the legislative intent of ensuring finality to the orders passed by the Exc .....

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way. In this context, the Division Benches have recognized certain self imposed restrictions. In case of Amitara Industries Ltd. vs. Union of India reported in 2014 (305) ELT 322, it was observed as under: 11. In the instant case, as the petitioner has approached this Court urging to invoke extraordinary jurisdiction relying on the decision of D.R. Industries Ltd. v. Union of India(supra), recognising that this Court has extraordinary powers in appropriate case to interfere even while upholding .....

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