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TMI Blog2018 (11) TMI 922X X X X Extracts X X X X X X X X Extracts X X X X ..... how-cause notices in the two proceedings. 3. Learned advocate for the petitioners submits that, both the impugned show- cause notices were issued beyond the period of limitation prescribed. He submits that, in W.P. 9267(W) of 2018 (for the sake of convenience hereinafter referred to as the first writ petition), the revenue has a claim in respect of a period from October 2010 to March, 2011. For the subsequent period of time shown in the show-cause notice the revenue has no claim. So far as the other writ petition being W.P. 9270(W) of 2018 (hereinafter referred to as the second writ petition for the sake of convenience) he submits that, the period involved is 2010 to 2013. However, he submits that, the major claims in the second writ petit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dvocate for the petitioner relies upon 2015 (326) E.L.T. 532 (Guj.) (Panoli Intermediate (India) Pvt. Ltd. Vs. Union of India) and submits that, although an appeal may be barred by the laws of limitation, still then the writ petition is maintainable to assail an order in original. Moreover, Writ Court is not denuded of the power to direct the appeal to be accepted by the Appellate Authority, in spite of the period of limitation prescribed by statute having expired. He relies upon AIR 1958 SC 86 (State of U.P. Vs. Mohammad Nooh) and submits that, a writ of certiorari was available to challenge an order in original. Relying upon 2008 (231) E.L.T. 194 (S.C.) (Commissioner of Central Excise, Ahmedabad-I Vs. M. Square Chemicals) he submits that, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pril 22, 2016 are barred by limitation ? (b) Is the penalty imposed in the impugned order in original of the first writ petition stands vitiated ? (c) To what relief or reliefs are the parties entitled to ? 7. If, a demand is raised beyond the prescribed period of limitation, then, the same cannot be recovered. That is the view in M. Square Chemicals (supra). Such view was expressed upon considering the fact scenario obtaining therein. The fact scenario in the present case has to be looked into for considering, whether, the impugned show-cause notices are barred by limitation or not. In the present case, the first petitioner was found to have rendered services defined as taxable service under Section 65B (51) of the Finance Act, 1994. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to submit half-yearly return by the 25th of the month following the particular half year. Therefore, in the facts of the present case, the petitioner ought to have filed the return by April 25, 2011. The show-cause notice was issued on April 22, 2016. It was within a period of five years contemplated under Section 73 (6)(b) of the Act of 1994. The show-cause notice being within the period of limitation, therefore, no error, at least any jurisdictional error in the Adjudicating Authority assuming jurisdiction and passing the impugned order is substantiated. 9. The first issue is answered by holding that, the two impugned orders are not barred by the laws of limitation. 10. So far as the impugned order in the first writ petition is conce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt violation of the rules of procedure or acted in violation of principles of natural justice. It also holds that, notwithstanding the expiry of the period of limitation, a Court exercising jurisdiction under Article 226 of the Constitution of India can direct the Appellate Authority to consider an appeal filed beyond the prescribed period of limitation. 12. In the present case, none of the two writ petitions contain any prayer for allowing the petitioners to prefer an appeal by condoning the delay in preferring such appeals. Therefore, the question of directing the petitioners to prefer an appeal by condoning the delay therefore does not arise. 13. Mohammad Nooh (supra) is of the view that, a writ of certiorari can be issued, where there ..... X X X X Extracts X X X X X X X X Extracts X X X X
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