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TMI Blog2014 (2) TMI 404X X X X Extracts X X X X X X X X Extracts X X X X ..... ried out by an authority not competent therefor, the proposition of law, as tried to be contended by the petitioner, could very well be accepted. This Court, therefore, feels that the said plea cannot be allowed to be reagitated by the petitioner. Furthermore, the principle of estoppel should also be made applicable. The plea which was available to the petitioner before the competent authority, and having taken so which did not yield fruitful and/or desired result, cannot be allowed to be re-agitated in another proceedings not originated from the original order - This Court, therefore, feels that if the plea, as tried to be taken by the petitioner, is allowed at this stage of the proceedings, it would open a Pandora box for all and the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e said show cause notice and submitted to the jurisdiction of the said authority to decide the issue. The authority passed an order dated 1st December 2009 in a proceedings initiated on the basis of the said show cause notice and imposed penalty equivalent to differential duty under Section 11 (AC) of the Central Excise Act, 1944. The petitioner carried the said order to statutory appeal before the Commissioner, Central Excise (Appeals) but beyond the statutory period. The appeal was preceded with an application for condonation of delay. The appellate authority held that the appeal is incompetent and rejected the application for condonation of delay on the premise that Section 35 of the Central Excise Act, 1944 does not bestow any power t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of India (UOI) -vs- Rajasthan Spinning and Weaving Mills, reported in (2009) (13) SCC 448. There is no dispute to the proposition of law, as laid down in the aforesaid reports. One distinguishing feature, which this Court would like to indicate, is that in the aforesaid reports the order was carried in an appeal and ultimately against the original order, a Special Leave Petition was filed. This Court does not feel any hesitation to accept the proposition when the original order is carried to a higher forum, the entire issue is at large and the higher forum can go into the merit of the matter and can affirm and/or reverse the original order. It is absolutely a different thing when the order is assailed before the higher forum and stood aff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the power. I am afraid whether the aforesaid plea at all is available to the petitioner in this proceedings. The original order merges with the order of the appellate authority and finally merges with the order of the Tribunal upon dismissal of a validly constituted appeal. The order of the Tribunal is not appealed by the petitioner. Once the dispute has reached its finality, the aforesaid orders cannot be branded to be a nullity on the ground of being passed by an authority who is otherwise competent to do so. This Court, therefore, feels that the said plea cannot be allowed to be reagitated by the petitioner. Furthermore, the principle of estoppel should also be made applicable. The plea which was available to the petitioner before th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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