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TMI Blog2013 (11) TMI 1569X X X X Extracts X X X X X X X X Extracts X X X X ..... s have prayed for appropriate writ, direction or order quashing and setting aside the Order-in-Original No. AC/08/Div-Vapi/Adj/2010-11, dated 31-7-2010 (Annexure-B) as well as the Order-in-Appeal being OIA No. SRP/27/Vapi/2012-13, dated 18-9-2012 (Annexure-D) passed by the Commissioner (Appeals) and the Order No. A/10032/WZB/AHD/2013 and M/10142/WZB/AHD/2013, dated 31-12-2012 (Annexure-E). 3. The facts leading to present Special Civil Application in nutshell are as under : 3.1 That the petitioners herein are engaged in manufacture of Graphite and Bentonite (clay) mixture falling under CETSH No. 3801 90 00, Pencils Pencils Leads falling under CETSH No. 9609 10 00 9609 20 00 of Central Excise Tariff Act, 1985. They are holding Centr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Commissioner (Appeals) with delay condonation application. However, considering the provisions of the Central Excise Act, the Commissioner (Appeals) was of the opinion that he has no jurisdiction to condone the delay beyond the period mentioned in the Central Excise Act, he dismissed the appeal. Thereafter another appeal was also preferred which also came to be dismissed on the same ground. 4. Feeling aggrieved and dissatisfied with the impugned Order-in-Original as well as the orders in appeals, the petitioners have preferred present Special Civil Application under Article 226 of the Constitution of India. 5. Shri Paritos Gupta, learned Advocate appearing on behalf of the petitioners has fairly conceded that considering the provis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contest the same and even the appeals were preferred by the petitioners against the similar OIOs and the same came to be allowed by the Appellate Authority and the OIOs came to be set aside. Therefore, he has left it to the Court to entertain the petition and exercise the powers under Article 226 of the Constitution of India after having considered the observations made by the Division Bench of this Court and more particularly observations made in para 19 in the case of D.R. Industries (supra). 7. Heard Shri Paritos Gupta, learned counsel appearing for the petitioners and Shri R.J. Oza, learned counsel appearing for the respondents. 8. At the outset, it is required to be noted that the appeal preferred by the petitioners against the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... missioner (Appeals) within a period of 90 days from the date of communication of the order-in-original on account of circumstances beyond their control, such assessees can invoke the powers of this Court under Article 225 of the Constitution but, of course, not as a matter of right. 10. Similar view has been expressed by the Division Bench of this Court in Special Civil Application No. 6069 of 2011 also. 11. Considering the peculiar facts and circumstances of the case and the observations made by the Division Bench of this Court in the case of D.R. Industries (supra) and more particularly when similar OIOs are set aside by the learned Appellate Tribunal, we are of the opinion that the impugned OIO deserves to be quashed and set aside ..... X X X X Extracts X X X X X X X X Extracts X X X X
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