TMI Blog2019 (7) TMI 1345X X X X Extracts X X X X X X X X Extracts X X X X ..... and demand is not prima facie maintainable, the present petition deserves to be allowed and accordingly is allowed. Petition allowed. - CWP No.2098 of 2017 (O&M) - - - Dated:- 2-7-2019 - MR JASWANT SINGH AND MR LALIT BATRA, JJ. For The Petitioner : Mr. Jagmohan Bansal, Advocate For The Respondents : Mr. Anshuman Chopra, Advocate ORDER JASWANT SINGH, J. 1. Present Writ Petition under Article 226 of the Constitution of India has been filed seeking quashing of Order-in-Appeal dated 03.01.2017 (Annexure P-11) whereby Commissioner (A) has dismissed Appeal of the Petitioner on the ground of delay. The Petitioner in alternative has further sought quashing of Order-in- Original dated 21.03.2016 ( P-8 ) whereby demand of Central Excise Duty alongwith penalty was confirmed. 2. The Petitioner is engaged in the manufacture of paddy parboiling and paddy drying plants. The Respondent issued a Show Cause Notice dated 07.01.2015 ( P-5 ) proposing classification of par boiling plant under Chapter Heading 84198990 and demanding Central Excise Duty amounting to & ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itioner vide Order-in-Appeal dated 16.02.2017 has allowed Appeal. Further, Ld. CESTAT, Chandigarh in the case of other identically situated parties vide Final Order No. A/60300- 60309/19 dated 19.02.2019 has dropped demand for the period prior to 15.05.2014 and in the present case almost period is prior to 15.05.2014. It is further contended that, no doubt Commissioner (A) has no power to condone delay but there is plethora of judgments delivered by different High Courts where Hon ble Courts have either set aside Order-in-Appeal and remanded matter to Commissioner (A) to decide on merits or set aside Order-in-Original holding that demand is not maintainable even though delay was not condoned. In support of his contention, Ld. Counsel cited judgment of this Court in the case of JCB India Ltd. Vs. UOI 2014 (301) E.L.T. 209 (P H ) wherein Order-in-Original was set aside. The department has filed Civil Appeal No. 948 of 2016 before Hon ble Supreme Court which stands admitted. Ld. Counsel further on the identical issue cited judgment of Jharkhand High Court in the case of Adhunik Power Transmission Ltd. Vs. UOI 2015 (329) E.L.T. 58 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Provided that the Commissioner (Appeals) may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of sixty days, allow it to be presented within a further period of thirty days. ( 1A) The Commissioner (Appeals) may, if sufficient cause is shown at any stage of hearing of an appeal, grant time, from time to time, to the parties or any of them and adjourn the hearing of the appeal for reasons to be recorded in writing: Provided that no such adjournment shall be granted more than three times to a party during hearing of the appeal. ( 2) Every appeal under this section shall be in the prescribed form and shall be verified in the prescribed manner. 7. From the perusal of above quoted Section and law laid down by Hon ble Supreme Court in catena of judgments, it is quite evident that Commissioner (A) has no power to condone delay beyond a period of 30 days and in the present case Commissioner (A) has rightly dismissed appeal on the ground of delay. Judgments cited by Ld. Counsel for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... minal Procedure. The Hon'ble Court overruled its earlier judgment in the case of Satya Narayan Sharma versus State of Rajasthan (2001) 8 SCC 607 wherein it was held that there is blanket ban of stay of trials, therefore, Section 482 cannot be used for the aforesaid purpose. The relevant para 49 reads as under:- 49. It is thus clear that the inherent power of a Court set up by the Constitution is a power that inheres in such Court because it is a superior court of record, and not because it is conferred by the Code of Criminal Procedure. This is a power vested by the Constituti9on itself, inter alia, Under Article 215 as aforestated. Also, as such High Courts have the power, nay the duty to protect the fundamental rights of citizens under Article 226 of the Constitution, the inherent power to do justice in cases involving the liberty of the citizen would also sound in Article 21 of the Constitution. This being the constitutional position, it is clear that Section 19(3)(c) cannot be read as a ban on the maintainability of a petition filed before the High Court under Section 482 of the Code of Criminal Procedure, the non-obstante clause in Section 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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