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2016 (4) TMI 791 - GUJARAT HIGH COURT

2016 (4) TMI 791 - GUJARAT HIGH COURT - TMI - Condonation of delay of 65 days - belated beyond the maximum condonable period - Commissioner rejected the appeal on the ground that he had no power to condone such delay - Petitioner submitted that they had offered a sound explanation for delay preventing the petitioner from filing appeal within the extendable period of limitation - Held that:- explanation is general and lacks the requirement of being otherwise well explained. We may recall the peri .....

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ssioner to condone such delay. In other words, the statute requires that the appeals must be filed within a fixed period beyond which it would not be open for the Commissioner to condone the delay. - Decided against the petitioner - SPECIAL CIVIL APPLICATION NO. 16040 of 2015 - Dated:- 6-4-2016 - MR.AKIL KURESHI AND MR. A.Y. KOGJE, JJ. FOR THE PETITONER : MR ANAND NAINAWATI, ADVOCATE FOR THE RESPONDENT : MS AMEE YAJNIK, ADVOCATE ORAL ORDER (PER : HONOURABLE MR.JUSTICE AKIL KURESHI) 1. The petiti .....

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tioner, passed an order in original dated 24.12.2014 and disallowed the Cenvat credit to the tune of ₹ 19,92,473/and imposed penalty of ₹ 50,000/under Cenvat Credit Rules, 2004. Against such order in original, the petitioner preferred appeal before the Appellate Commissioner. There was however, delay in filing such appeal. The petitioner therefore, in its communication dated 04.05.2015 sought to explain the delay in following manner. The appellant submit that they were prevented by s .....

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various departments and functions including roles and responsibilities for indirect taxation litigation or adjudication matters and routine taxation matters also underwent strategic changes during the process. Various taxation related records and documents were shifted. The new persons who took over the responsibility were busy in the process of handover or charge of the new responsibilities and understanding the process/practices of the merged entity. Admist this, the said OIO was somewhere mis .....

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grant us an opportunity of personal hearing to further explain the 'cause' or exceptional circumstances, which has lead to the above delay. 4. The Commissioner of Appeals, however, by his order dated 05.06.2015 rejected the appeal on the ground that the same was preferred beyond the period of limitation prescribed and was also filed long after the maximum period for which the Commissioner could condone the delay. Under the circumstances, the Commissioner was of the opinion that he had n .....

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which the department had preferred no further appeals. The issue was thus, concluded in favour of the petitioner. He drew our attention to the judgment of Full Bench of this Court in case of Panoli Intermediate (India) Pvt. Ltd Vs Union of India and 2, reported in 2015 326 ELT 532 (Guj), in which, while answering the reference made by a Division Bench, it was held that a petition under Article 226 of the Constitution would be maintainable against the order in original even though the Commission .....

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routine manner bypassing the appeallate fora statutorily provided under the Act. Observations of the Full Bench in case of Panoli Intermediate (India) Pvt. Ltd (supra) in para 31 while answering the reference should be followed in such cases. 7. It is undoubtedly true that the appeal against the order in original should be filed within a period of 60 days as provided under Section 35 of the Central Excise Act. The Commissioner Appeals has discretion to condone the delay if sufficient grounds are .....

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even in such a situation, the jurisdiction of the High Court to entertain a writ under Article 226 of the Constitution directly against the order in original is neither barred nor taken away. In this context, the Full Bench had considered following three questions: (1.) Whether the period of limitation provided of 60 days, for filing an appeal under Section 35 of the Central Excise Act, 1944, could be extended only upto 30 days as provided by the proviso or the delay beyond the period of 90 days .....

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Article 226 of the Constitution of India, the order passed by the original adjudicating authority could be challenged on merits? 9. The questions were answered in the following manner. 31. We may now proceed to answer the question (1) Question No.1 is answered in negative by observing that the limitation provided under section 35 of the Act cannot be condoned in filing the appeal beyond the period of 30 days as provided by the proviso nor the appeal can be filed beyond the period of 90 days. (2) .....

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t jurisdiction and by assuming jurisdiction which there exist none, or A.2) Has exercised the power in excess of the jurisdiction and by overstepping or crossing the limits of jurisdiction, or A.3) Has acted in flagrant disregard to law or rules or procedure or acted in violation of principles of natural justice where no procedure is specified. B) Resultantly, there is failure of justice or it has resulted into gross injustice. We may also sum up by saying that the power is there even in aforesa .....

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n this context, we may notice some of the earlier observations of the Division Bench. In case of Lathia Industrial Supplies Co. Pvt. Ltd. v. Commissioner (AppealsI), reported in 2014 (307) E.L.T. 460 (Guj) the Division Bench has observed as under: 5. Having thus heard learned counsel for the parties, in facts off the case, we are inclined to put the matter back at the stage of adjudicating authority. We notice that there has been some delay in the petitioners approaching the Appellate Commission .....

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ds 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 extraordinary 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 days from the date of communication of the order, we are of the view that in such extraordinary cases where an assessee can show extra ordinary circumstances explaining the delay .....

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