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TMI Blog2014 (9) TMI 220X X X X Extracts X X X X X X X X Extracts X X X X ..... we need to step in by invoking extraordinary jurisdiction. Such powers are required to be exercised very sparingly and in event of extraordinary circumstances in an appropriate case where otherwise we would fail in our duty that such powers are needed to be invoked. We are therefore, of the opinion that orders impugned and appellate forums dated 7-1-2011 and 18-12-2009 though not be interfered with and yet the impugned order of Order-in-Original dated 23-2-2009 requires to be quashed and set aside. Decided in favour of assessee. - Special Civil Application No. 6069 of 2011 - - - Dated:- 30-1-2013 - Akil Kureshi and Sonia Gokani, JJ. Shri Hasit Dilip Dave, Advocate, for the Petitioner. Shri Y.N. Ravani, Advocate, for the Respondent. JUDGMENT By preferring this petition under Article 226 of the Constitution, the petitioner has sought the following prayers : a. Your Lordships be pleased to issue an appropriate writ order or direction in the nature of a writ of Certiorari, or any other appropriate writ order or direction by quashing and setting aside the impugned Order-in-Original dated 23-2-2009 and resultantly the Order-in-Appeal dated 18-12-2009 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner herein challenged the same before the Commissioner (Appeals) raising various grounds in such challenge. Such appeal was preferred on 3-8-2009 i.e. five months after the order impugned was passed. An application for condonation of delay was preferred along with the said appeal. It had been averred in the said application for condonation that the order-in-original had been received, but, was lost as the person concerned who received such an order did not file it at the proper place. Commissioner (Appeals) rejected this on the ground that there is delay of five months in filing the appeal. Invoking provisions of Section 35 of the Central Excise Act, it held that it does not enjoy the powers to condone delay beyond a period of 30 days. 5. This was carried to the Tribunal by the petitioner which confirmed the order of the Commissioner (Appeals) relying on decision of Apex Court rendered in case of Singh Enterprises v. CCE, Jamshedpur reported in 2008 (221) E.L.T. 163 (S.C.). The Tribunal also concurred with the findings that the Commissioner (Appeals) would not have power to condone the delay beyond the period of 30 days and the stipulated period of 60 days and accordingly, the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... however, we are not inclined to adopt such a course for the simple reason that the amount of Service Tax and penalty demanded is not very large. Further, in any case it is a question of payment of tax from one Central Government Department to another Central Government Department. Looking to the facts and circumstances of the case, we are not inclined to exercise extraordinary discretionary jurisdiction and, therefore, the petition is dismissed. 9. Learned counsel Shri Ravani appearing for the respondent has urged that this Court may not interfere in extraordinary jurisdiction in the instant case when there is no error in their concurrent views. He however, has not disputed that neither of the authorities i.e. the Commissioner (Appeals) and the Tribunal examined the issue on merits. He heavily relied upon the decision of the Apex Court rendered in case of Singh Enterprises v. CCE, Jamshedpur (supra) to substantiate his decision. He has also placed reliance upon the decision of the Apex Court in case of S.S. Rathore v. State of Madhya Pradesh reported in 1989 (43) E.L.T. 790 (S.C.) where doctrine of merger has been explained by the Apex Court which was examining the question of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e cause of action first arises when the remedies available to the public servant under the relevant service Rules as to redressal are disposed of. 10. On thus hearing counsel for both the sides and on duly considering the submissions made, it can be noted at the outset that the petitioner herein when challenged the order of adjudicating authority, the second show cause notice was issued after once the refund had already been allowed and paid to him. Both the authorities have rejected the appeals of the petitioner on the ground of limitation. Both the authorities had relied upon the decision of Apex Court in so doing. We have already held as noted hereinabove that there is no quarrel that the power of Commissioner (Appeals) to condone the delay is of three months maximum. And, therefore, no fault can be found with the approach of both the authorities as far as question of condonation of delay is concerned. We are therefore, naturally not to interfere with the orders of both the authorities. We have gathered from the materials on record that none of these authorities has decided the question on merit after the second round of litigation began and therefore, the question of merger ..... X X X X Extracts X X X X X X X X Extracts X X X X
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