2009 (3) TMI 202 - HC - Central Excise

Summary

Issues involved: Challenge to order by adjudicating authority, appeal filed belatedly before Commissioner (Appeals), refusal of Tribunal to intervene, consideration of subsequent notification, invocation of writ jurisdiction under Article 226 of the Constitution.

Challenge to order by adjudicating authority: The petition challenged an order made by the adjudicating authority, against which an appeal was filed belatedly before the Commissioner (Appeals). The Commissioner did not condone the delay due to statutory limitations u/s 35 of the Central Excise Act, 1944. The Tribunal also refused to intervene in the matter.

Consideration of subsequent notification: The petitioner argued that the duty assessed resulted in gross injustice as the adjudicating authority did not consider the import of a subsequent notification dated 30-4-2003. Reference was made to a judgment of the Court in a similar case to support the argument that in cases of gross injustice, the High Court's powers under Article 226 of the Constitution can be invoked.

Invocation of writ jurisdiction under Article 226 of the Constitution: The Court clarified that in cases where extraordinary circumstances explain a delay in filing an appeal before the Commissioner (Appeals) and gross injustice has been done, the High Court's jurisdiction under Article 226 can be invoked. However, it emphasized that the delay must be explained first before delving into the merits of the case.

Conclusion: The Court held that in the absence of any statutory powers available to the appellate authority, both the Commissioner (Appeals) and the Tribunal were correct in not condoning the delay. Since no extraordinary circumstances were presented to justify condonation, the petition was rejected summarily.