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TMI Blog2017 (9) TMI 1074X X X X Extracts X X X X X X X X Extracts X X X X ..... quoted below for ready reference: "1. Writ Petition No.49560/2016 is filed assailing the impugned order Annexure- H dated 25.08.2016 passed by the respondent-Commissioner of Central Excise (Appeals-I), Bengaluru, rejecting the appeal filed by the petitioner-assessee as barred by limitation of 184 days. 2. Learned counsel appearing for the Commissioner of Appeals submitted that the Commissioner has no power to condone the delay beyond the period of 30 days in terms of Section 35(1) of the Central Excise Act, 1944, which provides for a period of 60 days for filing an appeal and the proviso thereto empowers the Commissioner of Appeals to condone the delay, provided such an appeal is filed within 30 days after the said prescribed period of 6 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... traordinary jurisdiction of Article 226 of the Constitution of India and the respondent-Commissioner of Appeals may be directed to decide the appeal on merits. He relied upon a Division Bench decision of this Court in the case of M/s.Practice Strategic Communications India Private Limited -versus- The Commissioner of Service Tax, in WP No.13917/2016 decided on 04.07.2016, wherein this Court has held as under; "11. In view of the above referred decision of this Court, if this Court finds that the authority has passed the order without jurisdiction or has exercised the power in excess of the jurisdiction or by over-stepping or crossing the limit of jurisdiction or that there is failure of justice, or it has resulted in gross injustice, it wo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... After the aforesaid condition is complied with, the matter shall stand restored on the file of the Commissioner (Appeals) with a further direction that he shall consider the appeal on merits in the light of the observations made by this Court in the above judgment and after giving opportunity of hearing to all concerned. 16. It is made clear that the appeal shall be decided within a period of three months from the date of compliance of the condition of deposit of the amount and cost to the respondent. It is also observed that the contentions of both the sides shall remain open to be considered before the appellate authority. The petition is allowed in the above terms. Rule made absolute." 5. Learned counsel for the petitioner- assessee f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itions are disposed of accordingly. No costs." 2. The present impugned order passed by the respondent No.2-Commissioner of Central Excise (Appeals), Mysore, refusing to condone the delay beyond the prescribed period of 90 days, has resulted in the impugned dismissal of the appeal. 3. The learned counsel for the petitioner submitted that the delay was caused on account of illness of the concerned official of the petitioner-company and therefore, the said delay deserve to be condoned. 4. In view of the limitation of the respondent- authority by a statutory provision, even the genuine cases for condonation of delay cannot be considered and that is why such delays have been condoned by this Court in some cases, one of which is quoted above. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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