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Judgment
A.L. Dave, J. 1. Rule: The Petitioner has approached this Court with this petition under Article 226 of the Constitution of India making following prayers:
(A) Your Lordships be pleased to admit this Special Civil Application;
(B) Your Lordships further be pleased to issue a writ of certiorari or any other appropriate writ, order of direction quashing and setting aside the impugned order dated 25-11-2004 passed by Respondent No. 3 as per Annexure ''A'' to this petition; on in the alternative.
(C) Your Lordships be pleased to issue a writ of certiorari or any other appropriate writ, order or direction quashing and setting aside the impugned order dated 16-6-2006 as per Annexure ''E'' to this petition passed by the Customs, Excise and Service tax Appellate Tribunal, West Zonal Bench at Mumbai and further be pleased to direct the Hon''ble Tribunal to decide the Petitioner''s Appeal No. E/2607/05 as above said on merits and in accordance with law in the interest of justice; or in the alternative.
(D) Your Lordships be pleased to issue a writ of certiorari or any other appropriate writ, order or direction quashing and setting aside the impugned order dated 19-5-2005 passed by Respondent No. 3 as per Annexure ''C to this petition and further be pleased to condone the delay in preferring appeal before Respondent No. 2 and may kindly direct Respondent No. 2 to decide the Petitioner''s appeal No. 331/205/ 122(raj)Commr(A)/Raj as above said on merits and in accordance with law in the interest of justice.
(E) Pending admission, hearing and final disposal of this petition, Your Lordships be pleased to stay the excepting operation and implementation of the impugned order passed by Respondent No. 3 dated 25-11-2004 as per- Annexure ''A'' to this petition in the interest of justice.
(F) To pass such other and further orders as may be deemed fit and proper in the interest of justice.
The Petitioner runs Devikrupa Industries at Rajkot. The officer of the Excise Department had searched the premises on 9-1-2003 and thereafter a show cause notice was served on the Petitioner on 5-12-2003 by the Jt. Commissioner, Custdms & Central Excise calling upon him to show why duty of Rs. 8,69,280/-should not be levied u/s 11A of the Central Excise Act, 1944 from the Petitioner alongwith interest and penalty u/s 11AB and Section 11AC. A reply to the show cause notice was given by the Petitioner on 11-2-2004. After hearing the Petitioner''s authorised representative on the issue, the Respondent No. 3 passed order on 25-11-2004 and directed the Petitioner to pay the said amount of Rs. 8,69,280/- with penalty of like amount and the interest at appropriate rate. On receiving the copy of the said order on 24-12-2004 the Petitioner was required to prefer appeal before the Commissioner (Appeals) within 60 days. The Petitioner, however, preferred an appeal u/s 35 of the Act on 31-3-2005 i.e. After delay of 37 days. The Petitioner had also prayed dispensing with the requirement of making pre-deposit of duty and penalty. The Respondent No. 2, however, dismissed the appeal as having been time barred. The Petitioner challenged that order before the Customs, Excise and Service Tax Appellate Tribunal West Zonal Bench at Mumbai (CESTAT) u/s 35C of the Act which came to be registered as Appeal No. E. 2607/2005. The stay application came to be rejected by the Tribunal by order dated 19-9-2005 requiring the Petitioner to deposit an amount of Rs. 8,69,280/- by 31-10-2005, failing which the appeal was ordered to be dismissed without referring the same to the Tribunal. On 17-5-2006, the Tribunal ordered to restore the appeal to its original number and fixed the hearing of the stay application on 15-6-2006. The Petitioner''s advocate was not present before the Tribunal and the stay application and appeal came to be rejected on that very day.
The Petitioner therefore challenged the provisions contained in proviso to Section 35(i) of the Central Excise Act on its vires and in the alternative order passed by the Tribunal and the order-in-original, so also the order of refusal of condonation of delay passed by the Respondent No. 2 by way of preferring Special Civil Application No. 27055 of 2006. The said petition came to be disposed of by order dated 13-3-2008 whereby the petition came to be rejected while making following observations;
We leave it open to the Petitioners to file fresh petitions for invoking the writ jurisdiction of this Court under Article 226 of the Constitution for the purpose of challenging the order-in-original passed by the adjudicating authorities. As and when such writ petitions are filed, we will deal with the facts in each individual case.
This situation has given rise to the present petition.
We have heard learned advocate Mr. Shelat for the Petitioner and learned Standing Counsel Mr. Parikh for the Respondent.
This petition is opposed to by the Respondents mainly on the ground of its maintainability and on condonation of delay part. A reliance is placed on the decisions of the Apex Court in the case of Singh Enterprises Vs. Commissioner of Central Excise, Jamshedpur and Others, where a view is taken that, period of limitation provided under special Act cannot be condoned by resorting to Section 5 of the Limitation Act, so also the decision in the case of Commissioner of Customs and Central Excise Vs. Hongo India (P) Ltd. and Another,
Therefore this petition may not be entertained.
On the other hand, the Petitioner''s case is that the legal proposition as established in the said two judgments would not apply to the case of the Petitioner in light of the fact that the Petitioner was granted liberty to prefer fresh petition invoking writ jurisdiction of this Court under Article 226 of the Constitution of India for the purpose of challenging the order-in-original passed by the adjudicating authorities. Mr. Shelat submitted that the Respondents have chosen not to challenge that order before higher forum although it is in conflict with the views expressed by the Apex Court in the aforesaid decisions of Singh Enterprises and Hongo India (P) Ltd. (supra). Mr. Shelat therefore submitted that the Respondent authorities have, therefore, accepted the judgment of the Coordinated Bench of this Court and, therefore, now cannot contend that the petition is not maintainable.
We have considered rival submissions. There cannot be any dispute on the proposition of law as laid down by the Apex Court in Singh Enterprises and Hongo India (P) Ltd. (supra) and provisions of Section 5 of Limitation Act cannot be applied to the cases under Central Excise Act, 1944, even by resorting to Section 29 of the Limitation. In the instant case, however, the Coordinate Bench of this Court made the observations as reproduced hereinabove and granted liberty to challenge the order-in-original passed by the adjudicating authorities. This order was not challenged by the Respondents authorities before the higher forum. The period of limitation is a defence available to the Respondent and by not challenging the said decision of Coordinated Bench the Respondent can be said to have acquiesced to the observations made permitting the Petitioner to challenge the order-in-original before this Court, irrespective of limitation and, therefore, in this peculiar circumstances we are of the view that the objection as to maintainability and question of limitation cannot be accepted against the Petitioner. We may hestion to add that this view, we are taking in peculiar facts of this case, namely, the order passed by the Coordinated Bench and that order having become final and having not been challenged by the Respondents and which will not form a precedent in similar cases.
So far as merits are concerned, we find that the Petitioner''s appeal came to be dismissed only on the question of limitation. That aspect now having been considered earlier by Coordinated Bench of this Court permitting the Petitioner to challenge the order-in-original, the order-in-original passed by the Respondent No. 3 has to be considered on its own merits. A contention is raised before us by Mr. Shelat that in cases of identical situation a different view is taken by the same authority, favourable to the Assessee. This has not been considered by the Respondent No. 3. The specific case of M/s. Jalaram Sales Corporation, Junagadh, was brought to the notice of the Respondent No. 3. In these circumstances, we set aside the order-in-original passed by the adjudicating authority and direct the Respondent No. 3 to pass an order afresh in light of the above observation and on its own merits after giving audience to the Petitioner. As a consequence, the consequential orders passed by the Commissioner (Appeal) as well as Tribunal would also stand quashed and set aside. The petition is allowed accordingly with no order as to costs. Rule made absolute.
At this stage a request is made to stay the order for a period of eight weeks by learned Standing Counsel Mr. Parikh. The request as prayed for is granted.