TMI Blog2019 (7) TMI 204X X X X Extracts X X X X X X X X Extracts X X X X ..... the view expressed by the above two full bench decisions of the High Courts holding that writ petition would lie against an order-in-original, even though the appeal was dismissed as time-barred, is not a general rule in all cases and on the other hand, it is a qualified one applicable only under certain circumstances. Petition dismissed as not maintainable. - W. P. Nos. 27524, 27544, 27555, 27575, 27581, 27584, 27604, 27610, 27615 of 2018 - - - Dated:- 26-10-2018 - K. RAVICHANDRABAABU, J. G. Natarajan for the petitioner. S. R. Sundar , Standing Counsel, for the respondents. W. P. Nos. 27524, 27544, 27555, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stoms, Excise and Service Tax Appellate Tribunal by final order dated June 29, 2017, dismissed the appeals, however, without going further into the merits of the issues. (c) Thereafter, the petitioner preferred further appeals before the Division Bench of this court in CMA Nos. 1691 to 1700 of 2018 challenging the order of the Customs, Excise and Service Tax Appellate Tribunal. The said appeals also came to be dismissed by the Division Bench of this court on August 7, 2018. (d) Therefore, it is evident that the order passed by the original authority got confirmed by the appellate authority up to this court in the above CMA Nos. 1691 to 1700 of 2018 as stated supra, by dismissing the appeal, though on the reason that it is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... smissed as time- barred. However, in the present case before this court, admittedly further appeals were filed before the Division Bench of this court as against the order of the Tribunal and that the same were dismissed by confirming the orders of the first and second appellate authorities. Apart from the above distinction of fact, I would like to emphasize that the view expressed by the above two full bench decisions of the High Courts holding that writ petition would lie against an order-in-original, even though the appeal was dismissed as time-barred, is not a general rule in all cases and on the other hand, it is a qualified one applicable only under certain circumstances as stated below. The Gujarat High Court in Panoli Intermediate ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etition against an order-in-original in circumstances such as are obtaining presently cannot be for the mere asking. The High Court would necessarily take note of the fact that the writ petitioner who seeks to assail the validity of such an order-in-original lost out on invocation of appellate remedies due to delay, intentionally or otherwise, and exercise its discretion judiciously on the facts of that individual case to decide as to whether challenge made by such a writ petitioner should be entertained. The length of the delay on the part of the petitioner in filing a writ petition may be one of the crucial factors that would weigh with the court as it would not be open to a person aggrieved by an order-in-original to sleep over the same ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tural justice. Perusal of the grounds raised in these writ petitions would show that the petitioner has not made out a case in challenging the order of original authority under anyone of the above circumstances and on the other hand, the challenge was on the merits of the order. Certainly, the allegation of the petitioner that the adjudicating authority has invoked wrong provision of law for imposing penalty, cannot be considered as an action without jurisdiction and on the other hand, it could be wrong quoting of provision by the adjudicating authority, so long as the said authority is having competence to impose penalty. Therefore, in my considered view, the above two decisions are not applicable to the present case. 9. Even othe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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