Skyron Overseas vs Union of India (UOI)

H.N. Devani, J.—This petition has been preferred, seeking the following substantive reliefs:

In view of the facts and circumstances above mentioned, it is respectfully prayed that this Hon''ble Court may be pleased:

(i) to issue a writ of certiorari, or order other writ, order or directions in the nature of certiorari, quashing and setting aside the impugned Orders (i)

M/949/WZB/AHD/09 dated 7-8-2009 and Order No. A/504/WZB/2005/CII/Eb dated 5-10-2005 passed by the Customs, Excise and Service

Tax Appellate Tribunal, (ii) Order-in-appeal No. RKS/30/SRT-I/2005 dated 18-1-2005 passed by the Commissioner (Appeals), Surat-I, (iii)

Order-in-Original No. SRT/Adj/37/OA/2002 dated 7-8-2002 passed by the Additional Commissioner of Central Excise, Surat-I;

(ii) to issue a writ of certiorari, or order other writ, order or directions in the nature of certiorari, quashing and setting aside the impugned Orders (i)

M/949/WZB/AHD/09 dated 7-8-2009 and Order No. A/504/WZB/2005/CII/EB dated 5-10-2005 passed by the Customs, Excise and Service

Tax Appellate Tribunal, (ii) Order-in-appeal No. RKS/30/SRT-I/2005 dated 18-1-2005 passed by the Commissioner (Appeals), Surat-I, (iii)

Order-in-Original No .SRT/Adj/37/OA/2002 dated 7-8-2002 passed by the Additional Commissioner of Central Excise, Surat-I;

(iii) consequently, to issue a writ of mandamus, or other writ, order or direction in the nature of mandamus, directing the CESTAT to restore the

appeal to its original number and to hear and decide the Petitioner''s appeal;

Vide Order-in-Original dated 7th August 2002, demand of duty of Rs. 4,37,377/- along with penalty of equivalent amount and interest came to

be confirmed against the Petitioner. Against the said order the Petitioner preferred appeal before Commissioner (Appeals) along with stay

application on 21st September 2004. Vide order dated 17th January, 2005, the appeal came to be dismissed as not maintainable on the ground

that the same had not been filed within the statutory period of limitation and that Commissioner (Appeals) does not have power to condone the

period of delay beyond 30 days of the expiry of 60 days as provided u/s 35 of the Central Excise Act, 1944 (the Act). The Petitioner carried the

matter in appeal before the Customs, Excise & Service Tax Appellate Tribunal (the Tribunal), which came to be dismissed vide order dated 6th

September 2005, on the ground that the Tribunal cannot go into the merits of the appeal when the appeal has been dismissed by the lower

appellate authority on the ground of the same being time barred. Subsequently, it appears that the Petitioner filed an application for restoration of

appeal which also came to be dismissed on 21st February 2006. Thereafter, after a period of more than three years since the date of dismissal of

the restoration application, the Petitioner again moved an application before the Tribunal for rectification of appeal, which came to be rejected vide

the impugned order dated 7th August 2009. Being aggrieved, the Petitioner has moved the present petition seeking the reliefs noted hereinabove.

Assailing the impugned orders, the learned advocate for the Petitioner submitted that the Order-in-Original was not served upon the Petitioner

till 13-8-2004. That in its application for condonation of delay made before Commissioner (Appeals) it was categorically explained that it was only

when the Superintendent of Central Excise initiated recovery proceedings vide letter dated 13-8-2004 hat the Petitioner came to know about the

order having been passed by the Additional Commissioner. Inviting attention to the order of Commissioner (Appeals) it was submitted that

Commissioner (Appeals) has observed that the Order-in-Original was dispatched on 13-9-2002; that there is nothing on record which may

suggest that the Order-in-Original was returned to the Central Excise office as undelivered; and that the Petitioner had not brought any other

evidence on record to rebut the above evidence; whereas on the contrary it is the Respondents who have not produced any evidence to show that

the Order-in-Original had in fact been served on the Petitioner. In absence of service at the relevant point of time, the order-in-original was

received by the Petitioner only on 13-8-2004, hence, the appeal which was filed on 21-9-2004 was well within the prescribed period of limitation

and as such Commissioner (appeals) was not justified in rejecting the appeal on the ground of the same being time barred. It was urged that the

Tribunal having failed to appreciate the case of the Petitioner in proper perspective, the petition deserves consideration and interim relief as prayed

for is required to be granted,

The undisputed facts are that against the order-in-original dated 7-8-2002, the Petitioner preferred appeal before Commissioner (Appeals) on

21-9-2004 which came to be dismissed on the ground of limitation on 18-1-2005. Against the said order the Petitioner preferred appeal before

the Tribunal which came to be dismissed vide order dated 6-9-2005. The Petitioner thereafter moved an application for restoration of appeal,

which came to be of dismissed on 21-2-2006. Thereafter, on 4-6-2009, after a lapse of more than three years, the Petitioner again moved a

Miscellaneous Application praying for rectification of appeal before the Tribunal, which came to be rejected vide order dated 7-8-2009.

Thereafter, after a period of more than six months, the Petitioner has filed the present petition in the last week of March 2010.

Thus, though the first order was made by the Tribunal on 6-9-2005 the Petitioner did not challenge the same at the relevant time, but went on

making applications after applications, that too after long intervals, the last being more than three years. In the process considerable time of more

than seven years since the date of the order-in-original has elapsed. The contention raised on behalf of the Petitioner is that the order in original

was not served upon it at the relevant time and that it was served for the first time on 13-8-2004 when a letter for recovery was issued to the

Petitioner. As to when the order in original was actually served on the Petitioner is a question of fact. Considering the time which has elapsed even

from the date of the first order of the Tribunal, it would be too much to expect the Respondents to now prove as to when the order in original was

served upon the Petitioner, which is a situation of the Petitioner''s own making. The Petitioner by its very conduct in not challenging the order of the

Tribunal at the relevant time; moving application for rectification of appeal after waiting for a period of more than three years after the application

for restoration came to be rejected; and approaching this Court after more than six months after the rejection of the application for rectification, has

disentitled itself to the grant of any relief in exercise of powers under Article 226 of the Constitution of India. At this stage after an inordinate delay,

the Petitioner cannot be permitted to challenge the order made by the Tribunal way back in the year 2005, more particularly when no explanation

for this delay and the conduct of the Petitioner is forthcoming.

For the foregoing reasons, the Petitioner is not entitled to any of the reliefs prayed for in the petition. The petition being devoid of any merit is

accordingly, summarily rejected.