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TMI Blog2015 (1) TMI 79X X X X Extracts X X X X X X X X Extracts X X X X ..... to be irregular, would not permit us to ignore such gross delay when the statute provides for power of condonation to the appellate authority which has been circumscribed by the period beyond which such powers cannot be exercised - Decided against assessee. - SPECIAL CIVIL APPLICATION NO. 18354 of 2014 - - - Dated:- 22-12-2014 - MR. AKIL KURESHI AND MR. VIPUL M. PANCHOLI, JJ. MR DHAVAL SHAH, ADVOCATE, MR. S S IYER, ADVOCATE FOR THE PETITIONER ORAL ORDER (PER : HONOURABLE MR.JUSTICE AKIL KURESHI) 1. Petitioner has challenged an order dated 22.02.2013 as at AnnexureA to the petition passed by the Additional Commissioner of Central Excise, Customs and Service Tax, SuratI. Under such order, the adjudicating authority co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case of Commissioner of Customs Central Excise v. Hongo India (P) Ltd. reported in 2009 (236) ELT 417. 4. Learned counsel Shri Suriyanarayanan for the petitioner, however, submitted that the petitioner is a cooperative society. The duty itself is under legal dispute. In any case imposing of penalty is wholly erroneous. He further submitted that this Court has jurisdiction to entertain a writ petition against the order of adjudication, despite availability of alternative remedy. 5. It is indisputably true that a writ Court is not bound by an alternative statutory remedy available and on its discretion can entertain a writ petition ignoring such statutory appeals. It is also true that in rare and exceptional cases where this Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s that non consideration of the issues would result into gross injustice. The Court observed as under : 19. As regards the contention that there may be extraordinary cases where assessees may not be in a position to challenge the order of the adjudicating authority before the Commissioner (Appeals) within a period of 90 days from the date of communication of the order, we are of the view that in such extraordinary cases where an assessee can show extra ordinary circumstances explaining the delay and also gross injustice done by the adjudicating authority, the assessee may invoke the writ jurisdiction of this Court. Hence, in cases where the assessees have suffered gross injustice and they could not file appeals befo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion No.16182 of 2012, in which the Court observed as under........................ 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pressed its own appeal. 11. In the appeal filed by the petitioner much belatedly, to explain the delay all that was stated was as under: 4. There is delay in filing the Appeal by oversight. When M/s.Gujarat Polyfilms Pvt. Ltd. filed an Appeal against this order, we thought that we also have filed the same with them. Before us in the present petition also, to explain the delay, it is stated that the petitioner was under a genuine and bonafide impression that appeal was filed on their behalf before the Commissioner since the petitioner company and the Gujarat Polyfilms had a common cause. Counsel for the petitioner additionally stated before us that the consultant was instructed to file appeals on behalf of b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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