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TMI Blog2002 (8) TMI 109X X X X Extracts X X X X X X X X Extracts X X X X ..... t and engaged in the manufacturing of soft drinks falling under Chapter XXII of the Central Excise Tariff Act, 1985. The respondent No. 2 i.e. Additional Commissioner (Central Excise) issued a notice on 2-6-1999 demanding excise duty along with interest and mandatory penalty and intended to levy a penalty under Rule 209A of the Central Excise Rules, 1944 on the petitioners nos. 2, 3 and 4. After hearing the petitioners, the respondent No. 2 passed an order on 26-12-2001 thereby imposing duty of Rs. 14,02,900/- along with interest as provided under Section 11AB of the Central Excise Act in short called 'Act' 1944 and further penalty amounting to Rs. 14,02,900/- purported to be under Section 11AC of the 'Act' read with Rule 173Q of the said R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2) Every appeal under this section shall be in the prescribed form and shall be verified in the prescribed manner. 5.It has been argued on behalf of the learned Counsel for the petitioner that his clients were not aware with the provisions of Section 35, moreover, due to the circumstances beyond the control of his clients, their counsels having fallen ill for considerable length of time, therefore, appeal could not be filed. In this connection counsel for the petitioner relied on a decision of Delhi High Court in Civil Misc. Writ Petition No. 3650 of 1995 (Eureka Forbes Ltd. v. Union of India and others) which under the similar circumstances held that the delay should have been condoned by the authorities and the authorities should have h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... because of a non-deliberate delay. (v) There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay, in fact he runs a serious risk. (vi) It must be grasped that judiciary is respected not on account of its power to legalise injustice on technical grounds but because it is capable of removing injustice and is expected to do so." 6.In 1998 (98) E.L.T. 591(All) {Eureka Forbes Ltd v. Union of India} it was held by this court :- "Before concluding I would like to refer Section 5 read with Section 29(2) of the Indian Limitation Act. In my view of the matter Section 5 read with Section 29(2) are appl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aw." 8.In 2002 U.P.T.C. -333 (Darshan Tent House, Allahabad v. Commissioner of Trade Tax) where this Court observed that it is necessary to hear the assessee on the merits of case and the explanation given by the assessee should have been given sympathetic consideration therefore, the order of Tribunal was found not legally sustainable and was set aside and the first appeal was directed to be heard by Deputy Commissioner (Appeal) on merits of the case. 9.Section 5 read with Section 29(2) are applicable even in the case where there is a time limit prescribed by the Special Act. Section 35 of 'Act' lays down a period of sixty days to file an appeal and within a further period of thirty days on satisfaction of the Commissioner (Appeals) an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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