9911796707
TMI Blog2010 (7) TMI 350X X X X Extracts X X X X X X X X Extracts X X X X ..... made by the Tribunal way back in the year 2005, more particularly when no explanation for this delay and the conduct of the petitioner - petitioner not entitled to any of the reliefs prayed for in the petition – Petition rejected - 7569 of 2010 - - - Dated:- 8-7-2010 - D.A. Mehta and H.N. Devani, JJ. REPRESENTED BY : Shri B.L. Narasimhan, for the Petitioner. [Order per : H.N. Devani, J. (Oral)]. - 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tay 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 under Section 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spondents 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. 4. The undisputed facts are that against the order-in-original dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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