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TMI Blog2016 (4) TMI 791X X X X Extracts X X X X X X X X Extracts X X X X ..... oner did not prefer appeal within this extendable period of 90 days, but consumed further 35 days in filing the appeal. The petitioner's explanation must be viewed in the background of the legislative intent of not permitting appeals which are delayed beyond 30 days without any power of the Commissioner to condone such delay. In other words, the statute requires that the appeals must be filed within a fixed period beyond which it would not be open for the Commissioner to condone the delay. - Decided against the petitioner - SPECIAL CIVIL APPLICATION NO. 16040 of 2015 - - - Dated:- 6-4-2016 - MR.AKIL KURESHI AND MR. A.Y. KOGJE, JJ. FOR THE PETITONER : MR ANAND NAINAWATI, ADVOCATE FOR THE RESPONDENT : MS AMEE YAJNIK, ADVOCATE ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 2015. In the 1st quarter 2015, the organization was reorganized and there was restructuring of various departments and functions including roles and responsibilities for indirect taxation litigation or adjudication matters and routine taxation matters also underwent strategic changes during the process. Various taxation related records and documents were shifted. The new persons who took over the responsibility were busy in the process of handover or charge of the new responsibilities and understanding the process/practices of the merged entity. Admist this, the said OIO was somewhere misplaced and could only be traced in the last week of April 2015. In view of the above exceptional circumstances, the impugned order could not be loc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the judgment of Full Bench of this Court in case of Panoli Intermediate (India) Pvt. Ltd Vs Union of India and 2, reported in 2015 326 ELT 532 (Guj), in which, while answering the reference made by a Division Bench, it was held that a petition under Article 226 of the Constitution would be maintainable against the order in original even though the Commissioner may not have power to condone the delay beyond a statutory limit. He submitted that the petitioner had offered a sound explanation for delay preventing the petitioner from filing appeal within the extendable period of limitation. Gross prejudice would be caused if the writ petition is not be entertained. 6. On the other hand, learned counsel Ms.Amee Yajnik for the department, opp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ral Excise Act, 1944, could be extended only upto 30 days as provided by the proviso or the delay beyond the period of 90 days could also be condoned in filing an appeal? (2.) Where a statutory remedy or appeal is provided under Section 35 of the Central Excise Act, 1944 and the delay cannot be condoned under Section 35 beyond the period of 90 days, then whether Writ Petition under Article 226 of the Constitution of India would lie for the purpose of condoning the delay in filing the appeal? (3.) When if the statutory remedy or appeal under Section 35 is barred by the law of limitation whether in a Writ Petition under Article 226 of the Constitution of India, the order passed by the original adjudicating authority could be chall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich will be governed solely by the dictates of the judicial conscience enriched by judicial experience and practical wisdom of the judge. 10. Thus, while recognizing the power of the High Court to entertain a writ under Article 226 under such circumstances, certain safeguards were suggested in order not to make this an independent source of appeal in disguise. Though power exists but exercise of the powers would be wholly discretionary. 11. In this context, we may notice some of the earlier observations of the Division Bench. In case of Lathia Industrial Supplies Co. Pvt. Ltd. v. Commissioner (AppealsI), reported in 2014 (307) E.L.T. 460 (Guj) the Division Bench has observed as under: 5. Having thus heard learned counsel for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom 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. 12. It can thus, be seen that by way of self imposed restrictions or a guide to exercise discretionary powers, the Court has been applying two parameters namely that the delay should be otherwise well explained and that the Court finds that the non consideration of issues would result into gross injustice to the petitioner. 13. In this context, we may refer to the explanation rendered by the petitioner before the appellate Commissioner for not being able to file the appeal within the period of limitati ..... X X X X Extracts X X X X X X X X Extracts X X X X
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