Notice of Motion No. 1275 of 2015 in Central Excise Appeal (L) No. 157 of 2015. Case: Principal Commr. of C. Ex. and Cus., Daman Vs Omnitex Industries (I) Ltd.. High Court of Bombay (India)

Case NumberNotice of Motion No. 1275 of 2015 in Central Excise Appeal (L) No. 157 of 2015
CounselFor Appellant: Shri Pradeep S. Jetly, Adv. and For Respondents: Shri Prakash Shah, i/b PDS Legal
JudgesS.C. Dharmadhikari and G.S. Patel, JJ.
IssueCentral Excise Act, 1944 - Section 35G
Citation2016 (334) ELT 639 (Bom)
Judgement DateFebruary 22, 2016
CourtHigh Court of Bombay (India)


  1. This is one of a several Notices of Motion seeking that a quite substantial delay in the filing of these Appeals be condoned. As the facts in all these cases are broadly similar, we have dealt with the present Notice of Motion as the main case for this judgment; the others will follow suit.

  2. The present Appeal arises from an order dated 2nd January, 2009 passed by the Customs, Excise & Service Tax Appellate Tribunal ("CESTAT"), West Zonal Bench, Ahmedabad and the CESTAT''s subsequent order dated 29th May, 2009 in a rectification of mistake application by the present Appellants. We are not in this Notice of Motion examining the merits of the present Appeal. We only note that the CESTAT order-in-appeal was passed in a proceeding that emanated from an Order-in-Original dated 10th January, 2008 passed by the Joint Commissioner, Central Excise and Customs, Daman and a subsequent order dated 30th July, 2008 passed by the Commissioner (Appeals), Central Excise & Customs, Daman.

  3. Copies of the two CESTAT appellate orders were received by the present Appellants on 28th January, 2009 and 19th June, 2009 respectively. The present Appellants preferred an Appeal under Section 35G of the Central Excise Act, 1944 before the Gujarat High Court. That Appeal was lodged within 180 days, the period prescribed under Section 35G(2)(a) of the Central Excise Act, 1944. On 28th April, 2011, the Gujarat High Court admitted the Appeal. It then remained pending there till 12th January, 2015, when the Gujarat High Court held that since the manufacturing unit in question was located within the Union Territory of Daman, in view of Section 36(b) of the Central Excise Act, 1944, the Gujarat High Court did not have the necessary territorial jurisdiction. The Gujarat High Court therefore dismissed the Appeal, but gave liberty to the Appellants to pursue their remedies in a Court of competent jurisdiction. It is pursuant to this order that the present Appeal was lodged in this Court on 29th July, 2015. The Appellant then filed the present Notice of Motion seeking that a delay computed at 2192 days be condoned.

  4. We have heard Mr. Jetly for the Appellants and Mr. Shah for the Respondents. Mr. Shah has, with his usual fairness, placed before us a compilation or compendium of several authorities on the subject. Before we advert to this, it is necessary to note that Section 35G(2A) confers on the High Court before whom an Appeal is filed the discretion to admit an...

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