2022 (2) TMI 733 - HC - Central Excise

Maintainability of appeal - period of limitation to maintain appeal has expired - petitioner submits that even after the adjudication order, the respondents have issued second show cause notice not permissible under law and adjudication order has been passed thereupon also - HELD THAT - The fact however admitted by Learned Counsel is that such orders are appealable and no appeal therefore has been filed. In absence of a challenge to the adjudication order by an appeal, the attachment order in consequence thereof cannot be challenged. The foundation of the attachment order is adjudication order thereby the writ petition to challenge the attachment order would not be maintainable in absence of challenge to the adjudication order by maintaining the appeal. Even the excuse taken by the petitioner that an appeal was not maintainable due to expiry of limitation cannot help him in any manner. Default of the party cannot be to his benefit and accordingly we do not find any reason to cause interference in the attachment order dated 22-3-2021. The show cause notice has already been adjudicated and in absence of an appeal thereof, the prayer made in this writ petition cannot be granted. Petition dismissed.

Summary

Issues: Challenge to attachment order based on adjudication order and appealability of orders.

Challenge to Attachment Order:
The writ petition was filed to challenge the attachment order dated 22-3-2021, which was based on an earlier adjudication order from 19-12-2017. The Counsel for the petitioner argued that the respondents issued a second show cause notice post the adjudication order, which is not permissible under the law. However, it was acknowledged that both the adjudication order and subsequent orders were appealable, and no appeal was filed against them. The Court emphasized that the attachment order stemmed from the adjudication order, and without challenging the adjudication order through an appeal, the challenge to the attachment order was not maintainable. The Counsel admitted that, as per the judgment in 'Harshad Chiman Lal Modi v. DLF Universal Ltd. & Anr.' 2005 (5) SCC 791, there was no power to condone the delay in filing an appeal.

Appealability of Orders:
The Court highlighted that the excuse given by the petitioner for not filing an appeal due to the expiration of the limitation period could not benefit him. It was emphasized that the default of a party cannot work in their favor. The Court concluded that since the show cause notice had already been adjudicated and no appeal was filed against it, there was no basis to interfere with the attachment order dated 22-3-2021. The writ petition was dismissed accordingly.