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TMI Blog2019 (7) TMI 1345X X X X Extracts X X X X X X X X Extracts X X X X ..... r in alternative has further sought quashing of Order-in- Original dated 21.03.2016 (P-8) whereby demand of Central Excise Duty alongwith penalty was confirmed. 2. The Petitioner is engaged in the manufacture of paddy parboiling and paddy drying plants. The Respondent issued a Show Cause Notice dated 07.01.2015 (P-5) proposing classification of par boiling plant under Chapter Heading 84198990 and demanding Central Excise Duty amounting to Rs. 44, 44, 488/- for the period December 2009 to March 2014. Another notice dated 21.04.2015 (P-6) was issued raising demand of Rs. 20, 30, 571/- for the period April-July 2014. The Respondent No. 2-Additional Commissioner vide common order dated 21.03.2016 (P-8) confirmed both the demands and further i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earlier circular. The Respondent-department on the basis of fresh circular issued Show Cause Notice on 07.01.2015 (P-5) raising demand for the period 2009-14. The question of correct classification is pending before Hon'ble Supreme Court in the case of Jyoti Sales Corporation Civil Appeal No. 6607 of 2017, however, on the question of limitation for the same period, in the case of M/s Kamla Steel Fabricator which is Proprietorship concern of son of Sh. Mani Ram- Proprietor of the Petitioner, Commissioner (A) who had dismissed Appeal of Petitioner vide Order-in-Appeal dated 16.02.2017 has allowed Appeal. Further, Ld. CESTAT, Chandigarh in the case of other identically situated parties vide Final Order No. A/60300- 60309/19 dated 19.02.2019 ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner of Central Excise and Service Tax 2017-TIOL-1055-HC-UKHAND-ST. 5. Ld. Counsel for the respondent did not dispute the fact that Ld. Tribunal has already dropped demand in the case of other parties for the period prior to 15.05.2014 and the entire period involved in the case of petitioner is prior to 15.05.2014 except two months, however Ld. Counsel contended that the Petitioner was bound to file Appeal within 60 days and Commissioner (A) has rightly held that he has no power to condone delay beyond 30 days. In the absence of power to condone delay, the Commissioner (A) has rightly held that delay cannot be condoned. The department has filed Civil Appeal No. 948 of 2016 before the Hon'ble Supreme Court assailing order passed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that no such adjournment shall be granted more than three times to a party during hearing of the appeal. (2) Every appeal under this section shall be in the prescribed form and shall be verified in the prescribed manner. 7. From the perusal of above quoted Section and law laid down by Hon'ble Supreme Court in catena of judgments, it is quite evident that Commissioner (A) has no power to condone delay beyond a period of 30 days and in the present case Commissioner (A) has rightly dismissed appeal on the ground of delay. Judgments cited by Ld. Counsel for the Respondent uphold the same view. No doubt, Commissioner (A) cannot condone delay but as held in the judgments cited by counsel for the Petitioner, this Court in exercise of power ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ous or without jurisdiction, it may condone delay and ask Appellate Authority to decide appeal on merits. Hon'ble Supreme Court in the case of Asian Resurfacing of Road Agency Pvt. Ltd. And Ors. Versus Central Bureau of Investigation 2018(2) RCR (Criminal) 415 while dealing with question of jurisdiction of High Court to entertain petition against order framing charge under Prevention of Corruption Act, 1988, in view of bar created by Section 19(3)(c) of the PC Act has held that inherent power of a court setup by constitution is a power that inheres in such Court because it is superior court of record and not because it is conferred by the Code of Criminal Procedure. The Hon'ble Court overruled its earlier judgment in the case of S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a blanket ban of stay of trials and that, therefore, Section 482 even as adapted, cannot be used for the aforesaid purpose. This again is contrary to the position in law as laid down hereinabove. This case, therefore, stands overruled. " Applying the ratio of the afore-stated judgments of different High Courts, we are of the considered opinion that impugned order deserves to be set aside and Petitioner must be heard on merits. The demand is not prima facie sustainable whereas if present petition is dismissed, the Petitioner would be liable to pay duty, interest and penalty which otherwise is not payable but for the delay. This court cannot act as court of appeal against the order passed by Commissioner (A), however in the present case we ..... X X X X Extracts X X X X X X X X Extracts X X X X
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