2009 (7) TMI 824 - HC - Central Excise

Order Appeal to Commissioner (Appeal) Limitation Appeal filed after 37 days before Commissioner dismissed as time barred - Tribunal ordered to restore the appeal to its original number and fixed the hearing of the stay application - This order was not challenged by the respondents authorities before the higher forum - period of limitation defence available to the respondent and by not challenging the said decision of Coordinated Bench the respondent acquiesced to the observations made permitting the petitioner to challenge the order-in-original before this Court - set aside the order-in-original passed by the adjudicating authority and directed respondent to pass an order afresh in light of the observation

Issues:
1. Maintainability of the petition under Article 226 of the Constitution of India.
2. Condonation of delay in filing the appeal.
3. Application of legal propositions from previous judgments.
4. Merits of the case and setting aside the order-in-original.

Issue 1: Maintainability of the petition under Article 226 of the Constitution of India:
The petitioner approached the Court with a petition under Article 226, seeking various writs to challenge orders passed by the Excise Department. The respondents argued against the maintainability of the petition, citing limitations under special Acts. The petitioner contended that previous judgments did not apply to their case due to specific circumstances. The Court noted that while limitations under special Acts cannot be condoned under the Limitation Act, the respondents did not challenge a previous order granting liberty to challenge the original order. In a unique situation, the Court held that objections to maintainability and limitation could not be accepted against the petitioner.

Issue 2: Condonation of delay in filing the appeal:
The petitioner's appeal was dismissed due to a delay in filing. However, the Court considered that the dismissal was solely based on limitation. Given the previous order allowing the petitioner to challenge the original order, the Court directed a fresh consideration of the order-in-original by the respondent authority. The Court emphasized that the dismissal was on a procedural ground and that the order-in-original should be reviewed on its own merits.

Issue 3: Application of legal propositions from previous judgments:
The Court referenced legal propositions established in previous judgments regarding the application of Section 5 of the Limitation Act to cases under the Central Excise Act, 1944. While acknowledging these principles, the Court highlighted the specific circumstances of the case where a previous order granting liberty to challenge the original order had not been contested by the respondents. This led the Court to conclude that the objections raised by the respondents could not be upheld in this particular scenario.

Issue 4: Merits of the case and setting aside the order-in-original:
The Court noted that the respondent authority did not consider a favorable decision in a similar case brought to their attention by the petitioner. In light of this, the Court set aside the order-in-original and directed the respondent authority to reconsider the matter on its own merits. Consequently, orders by the Commissioner (Appeal) and the Tribunal were also quashed. The petition was allowed, and the Court made no order as to costs. Additionally, a request to stay the order for eight weeks was granted by the Court.

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