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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 ..... ,430/with interest and penalties. 2. Admittedly, against such order, Section 35 of the Central Excise Act, 1944 provides an appeal to the Appellate Commissioner. Such appeal has to be filed within a period of 60 days from the date of the communication of the order. Proviso to Sub Section (1) of Section 35, however, provides that the Commissioner may, if he satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of 60 days, allow it to be presented for a further period of 30 days. 3. Admittedly, the petitioner has not filed such appeal. As per Sub Section (1) of Section 35, such appeal was to be presented within 60 days from the date of the communication. The Commissioner's ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rwise well explained and non-entertainment of the writ petition would result into gross injustice, entertained writ petitions against the original order even when the appeals were otherwise barred because of the limited powers of the Appellate Commissioner to condone the delay as in the case of Section 35 of the Central Excise Act, 1944. While doing so, the Court has always expressed its opinion that such instances must be rare and exercising such extraordinary powers would be an exception and not the rule. In case of Lathia Industrial Supplies Co. Pvt. Ltd. v. Commissioner (AppealsI) reported in 2014 (307) E.L.T. 460, Division Bench of this Court observed as under: " ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Hence, in cases where the assessees have suffered gross injustice and they could not file appeals before the Commissioner (Appeals) within a period of 90 days from the date of communication of the orderinoriginal on account of circumstances beyond their control, such assessees can invoke the powers of this Court under Article 226 of the Constitution but, of course, not as a matter of right." 6. In the later decision, this Court, however, refused to entertain the writ petition where the appeal was presented long after the period of limitation had expired in which it was observed as under: 9. It is true that under certain extraordinary circumstances, this Court has ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peal 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 had made available certain documents such as, appeal memo of the petitioner as well as that of M/s.Gujarat Polyfilms which documents were not part of the writ petition. In the appeal filed by M/s.Gujarat Polyfilms, the statements of fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as 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 both the entities and only due to oversight, he preferred one appeal. 12. In our opinion, such general statement would not explain such inordinate delay. Particularly when the statute puts a lid on the number of days of delay that the Commissioner can condone beyond which the appeal simply cannot be entertained, it would not be possible to ignore such a long delay on mere ..... X X X X Extracts X X X X X X X X Extracts X X X X
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