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TMI Blog2014 (3) TMI 714X X X X Extracts X X X X X X X X Extracts X X X X ..... 4/U/S/ 35AOrder (Delay Condonation) dated 29.11.2012 (Annexure-D) with consequential reliefs and benefits and also directions for allowing the appeal of the petitioner company by considering merits of the petitioner's case. (C) That Your Lordships may be pleased to issue a Writ of Mandamus or any other appropriate writ, direction or order directing the respondents, their servants and agents to sanction and pay in favour of the petitioner company rebate claims aggregating to Rs.8,07,312/- with interest under Section 11BB of the Central Excise Act, 1944. (D) Pending hearing and final disposal of the present petition, Your Lordships may be pleased to direct the respondents herein to pay rebate of Rs.8,07,312/- to the Petitioner Company on the terms and conditions that may be deemed fit by this Hon'ble Court; (E) An ex-parte ad-interim relief in terms of para 17(D) above may kindly be granted; (F) Any other further relief as may be deemed fit in the facts and circumstances of the case may also please be granted." 2. The petitioner is a company registered under the Companies Act and is a Government recognized export house. The petitioner is engaged in exporting textile prod ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch that the Commissioner had no power to condone. At that stage, the petitioner approached this Court by filing the present petition. 6. From the prayers, it can be seen that though the petitioner has challenged the appellate Commissioner's order rejecting the appeal of the petitioner on the ground of delay, a separate prayer has also been made challenging the very order of adjudication passed by the Deputy Commissioner. Learned counsel for the petitioner vehemently contended that there was bonafide error on the part of the consultant in not filing two separate appeals though technically needed. All along, the intention of the petitioner was to question the order of the Deputy Commissioner rejecting the rebate claims. Mere lapse of presentation of appeal should not result into injustice because of operation of statute. He, therefore, submitted that this Court should examine the legality of the order in original itself exercising writ jurisdiction. In this context, he relied on certain orders passed by this Court to which we would refer to at a later stage. 7. On the other hand, learned counsel Shri Bhatt for the department opposed the petition contending that the appeal was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 008) 3 GLH 662 exercised such extraordinary powers in rare cases. Even while doing so, the Court has consciously put on itself two important self-imposed restrictions, firstly that the delay should otherwise be well explained and secondly the Court should find non-consideration of issues would result into gross injustice. This can be seen from the judgment in the case of Lathia Industrial Supplies Co. Pvt. Ltd. v. The Commissioner, dated 20th March 2013 in Special Civil Application No.16182 of 2012, in which the Court observed as under: "5. Having thus heard learned counsel for the parties, in facts off the case, we are inclined to put the matter back at the stage of adjudicating authority. We notice that there has been some delay in the petitioners' approaching the Appellate Commissioner and obviously the Commissioner could not have ignored the statutory limit beyond which he could have condoned the delay. Nevertheless, as held by the Division Bench of this Court in case of D.R. Industries and Anr. v. Union of India and Ors. reported in 2008(3) GLH 662, such a situation would not prevent the High Court in appropriate case examine the validity of the order-in-original itself. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eing very small and with extremely good ground on merit to sustain, we are of the opinion that non interference at this stage would cause gross injustice to the petitioner. Therefore, we need to step in by invoking extraordinary jurisdiction." 10. Coming to the facts of the present case, we cannot view the limitation imposed under the statute leniently so as to bring through the backdoor the concept of sufficient cause flowing from section 5 of the Limitation Act. Even otherwise, the delay remains largely unexplained. The statute provided for a limitation of 60 days with a maximum possible extension of further 30 days. The statutory scheme thus recognizes that the right to appeal beyond the said period would be lost without any possibility of extension. Had there been some extraordinary circumstances preventing the petitioner from presenting the appeal within such time coupled with the gross injustice on account of termination of appellate remedy, we would have still considered the case of the petitioner for invoking the extra ordinary writ jurisdiction. In the present case, however, we find that the explanation for delay itself is insufficient. Learned counsel for the petitioner ..... 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