Writ Petition No. 3031 of 2006. Case: Parsi Dairy Farm Vs Asst. Commissioner of Central Excise. High Court of Bombay (India)
| Case Number | Writ Petition No. 3031 of 2006 |
| Counsel | For Appellant: Ms. Asha Bhambwani, Advocate. and For Respondent: Shri A.S. Rao a/w. S.D. Bhosale, Advocate. |
| Judges | S.C. Dharmadhikari and Sunil P. Deshmukh, JJ. |
| Issue | Limitation Act, 1963 - Section 5; Constitution of India - Article 226 |
| Citation | 2015 (320) ELT 376 (Bom) |
| Judgement Date | February 26, 2015 |
| Court | High Court of Bombay (India) |
Order:
1. This Writ Petition under Article 226 of the Constitution of India challenges the order passed by the Commissioner (Appeals) dated 23rd February, 2006 and that of the Customs, Excise and Service Tax Appellate Tribunal dated 24th August, 2006.
2. By the impugned order dated 22nd /27th August, 2006, the Tribunal held that the dismissal of the petitioner''s appeal as time barred by the first Appellate Authority requires no interference. The Order-in-Original was served on the petitioners on 23rd March, 2005, however, the petitioner approached the lower Appellate Authority on 1st August, 2005. The delay is about 70 days. The Commissioner (Appeals) is empowered to condone the delay of 30 days occurring beyond the statutory period of filing of an appeal meaning thereby the order passed by the Assistant Commissioner, is appealable to the Commissioner (Appeals). However, the appeal has to be filed within a period of sixty days from the date of communication of the order of the Assistant Commissioner/Order-in-Original. If the appeal is not filed within a period of sixty days, the Commissioner (Appeals) can condone the delay of thirty days beyond this stipulated period of sixty days provided he is satisfied that there is a sufficient cause shown by the aggrieved person.
3. In the present case, the Commissioner found that the appeal has been presented not only beyond the initial period of sixty days from the date of communication of the appeals, but even after the thirty days contemplated by the proviso to sub-section (1) of Section 35 of the Central Excise Act, 1944. In the circumstances, the Commissioner not been empowered to condone the delay, he has rightly dismissed the petitioner''s appeal. It is this view of the Tribunal which is impugned before us.
4. Ms. Bhambwani appearing on behalf of the petitioner would submit that there is a complete misreading and misapplication of law by the Commissioner and the Tribunal. The Tribunal should have appreciated that the record indicates that an ex parte order has been passed by the Assistant Commissioner, the petitioner had no knowledge of the order and the proceedings and particularly because one of their employees was not attending to the work. The Commissioner was appraised of this difficulty. The Commissioner, therefore, took into account this difficulty, but refused to assist the petitioner. This order is completely erroneous in law and deserves to be set aside.
5. Alternatively, without prejudice Ms. Bhambwani would submit that this is a writ petition invoking jurisdiction of this Court under Article 226 of the Constitution of India. If the petitioner is able to demonstrate a clear violation of the mandate of Article 265 of the Constitution of India, then, merely because the alternate remedy has not been availed of or availed of unsuccessfully, this Court is not prohibited from granting the relief. The tax has been collected without authority of law and is illegal. This is demonstrated by the fact that on the same allegations another show cause notice was issued by the Department/Revenue. That was contested by the petitioner. The petitioner has succeeded before the Commissioner (Appeals) and order passed by him, copy of which is at page 84 of the paper book dated 26th July, 2006, would demonstrate that there was no authority to levy, assess and recover excise duty. In the circumstances, this Court should entertain the petition and grant the relief even in relation to prior show cause notice and prior demand. That is because the petitioner has demonstrated that the allegations in both show cause notices are identical. The demand is based...
To continue reading
Request your trial