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2019 (7) TMI 205 - HC - Central ExciseCondonation of delay in filing appeal - power of Appellate Authority to condone delay - Jurisdiction - HELD THAT - The contentions raised do not fall within the scope of judicial review as explained. At the highest, the contentions raised may have warranted some examination the exercise of appellate jurisdiction, but not in exercise of powers of judicial review. In this case, the petitioner, delayed the institution of appeal and therefore, cannot expect that the this Court converts itself into an appeal court whilst exercising powers of judicial review under Article 226 of the Constitution of India. The contention as raised would require reevaluation and re-appreciation of factual position. Such an exercise cannot be undertaken in the exercise of limited jurisdiction of judicial review. There is absolutely no explanation for inordinate delay in the institution of the petition - petition dismissed.
Issues:
Challenge to Order-in-Original dated 10.03.2016, Order-in-Appeal dated 25.05.2017, and Final Order dated 21.11.2017. Analysis: The petition challenged the orders passed by the Assistant Commissioner of Central Excise and Customs Division-II, the Commissioner of Central Excise & Customs (Appeals-III), and the Tribunal. The appeal was dismissed as time-barred since it was instituted beyond the maximum extendable period of 90 days. The Tribunal upheld this dismissal citing the Supreme Court's ruling in Singh Enterprises vs. Commissioner of Central Excise, Jamshedpur. Full Benches of the Gujarat High Court and the Hyderabad High Court also supported this view. They held that even in a petition under Article 226/227 of the Constitution of India, the High Court should not condone the delay beyond 90 days in instituting the appeal before the Appellate Authority. Therefore, the challenge to the orders dated 25.05.2017 and 21.11.2017 was found to lack merit. The petitioner sought to challenge the Order-in-Original dated 10.03.2016 based on Full Bench decisions. The Full Bench of the Gujarat High Court in Panoli Intermediate (India) Pvt. Ltd. held that the limitation provided under Section 35 of the Act cannot be condoned beyond 30 days or 90 days. It also clarified the circumstances under which a petition under Article 226 of the Constitution could be preferred. Similarly, the Full Bench of the High Court of Andhra Pradesh/Telangana in Electronic Corporation of India Limited affirmed the possibility of a writ petition against an Order-in-Original, provided sufficient grounds for judicial review under Article 226 were established. However, the Court found that the contentions raised did not fall within the scope of judicial review as explained by the Full Bench of the Gujarat High Court. The petitioner's delay in instituting the appeal and the subsequent petition further weakened the case, leading to the dismissal of the petition. The Court noted that the impugned order was made on 10.03.2016, and the final order by the Tribunal was issued on 21.11.2017, but the petition was only instituted on 29.09.2018. The lack of explanation for the inordinate delay in filing the petition, coupled with the petitioner's denial of any delay or laches, provided an additional ground for dismissing the petition. Therefore, the Court dismissed the petition, and no costs were awarded in the present case.
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