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TMI Blog2009 (5) TMI 118X X X X Extracts X X X X X X X X Extracts X X X X ..... 5-2-2009 & 6-2-2009. After extensive hearing on 6-2-2009, the learned Advocate for the petitioner had sought time to prepare himself further and hence, the matter was adjourned to today in the presence of the learned Advocate. In the circumstances, once the matter is fixed peremptorily by the Court after having heard the matter at length, the Court has not found it fit to honour the leave note. 2. Hence, the petition is rejected for want of prosecution. Notice discharged. 2. Thereafter, the present Misc. Civil Application has been filed seeking restoration of the main petition. Accordingly, while issuing Rule in the Misc. Civil Application the Court had made it clear to the parties that the main petition shall also be heard together upon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Central Excise rejected the refund claim. 6. The petitioner carried the matter in Appeal before Commissioner (Appeals) and succeeded. The order made by Commissioner (Appeals) was challenged by revenue before Central Excise and Service Tax Appellate Tribunal (the Tribunal). Vide order dated 11-10-2004 the Tribunal allowed the Appeal filed by the department holding that the order determining Annual Production Capacity which included portion of galleries was not challenged by the petitioners and hence, as the said decision had attained finality, any amount paid under such determination was not refundable. It is an accepted position that the said order made by the Tribunal on 11-10-2004 has not been challenged and has become final. 7. Pursu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt petition, Your Lordships may be pleased to direct the respondents, their servants and agents to restitute amounts recovered from the petitioners on galleries on the conditions that may be deemed fit by this Hon'ble Court; (D) An ex-parte ad-interim relief in terms of Para 9(C) above may kindly be granted; (E) That Your Lordships may be pleased to pass appropriate Orders thereby dispensing with filing of certified copies of OIO No. 170/AC/REF/2005 dated 4-1-2006 (Annexure-'G') Order No. A/934/WZB/2004-C.II dated 11-10-2004 (Annexure-'F') and OIA No. 556/2003 (Ahd-I) dated 19-9-2003 (Annexure-'E'); (F) Any other further relief that may be deemed fit in the facts and circumstances of the case may also please be granted." 8. On a plain r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd a period of 30 days after the expiry of statutory period of limitation of 60 days. That the period spent in pursuing remedy by way of this petition is required to be considered as a bona fide pursuit of remedy before inappropriate Forum and the delay is required to be condoned. In support of the submissions made reliance has been placed on the following two decisions of the Apex Court : (i) Union of India v. West Coast Paper Mills Ltd., 2004 (166) E.L.T. 290 (S.C.) for the proposition that under Section 14 of the Limitation Act, 1963 the interpretation has to be liberal so as to bring within its scope any circumstance, legal or factual, which inhibits entertainment or consideration by the Court of the dispute on the merits. (ii) In the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ory period of limitation prescribed for preferring an Appeal before Commissioner (Appeals) had expired by then. It may be that further period of 30 days, which is within the discretion of the Appellate Authority, empowering the Appellate Authority to determine whether the delay should, or should not be condoned was available to the petitioner for preferring Appeal. But from that it is not possible to state that the delay is required to be condoned and the Appellate Authority should decide the Appeal, which may be filed, on merits. The Court does not want to deprive the discretionary powers vested in the First Appellate Authority by recording any finding as to whether delay should be condoned or not, in the event the petitioner choses to app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idering the fact that the said order is not an independent order made for the first time. The said order had already been made on 5-6-2003. It was only because the intervening order dated 19-9-2003 of Commissioner (Appeals), that the Adjudicating Authority was required to pass consequential order once again on 4-1-2006 pursuant to order made by the Tribunal. In the circumstances, once the order of Tribunal had attained finality, the petitioner cannot claim any relief. 16. The submission that once the Apex Court declared that galleries could not be included for the purpose of determining the Annual Production Capacity and hence on that count the duty was levied without authority of law also does not merit acceptance for the simple reason th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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