TEXCELLENCE OVERSEAS Vs. UNION OF INDIA

JUDGEMENT

(1.) By preferring this petition under Article 226 of the Constitution, the petitioner has sought the following prayers:

(2.) The Assistant Commissioner sanctioned the refund claim of Rs. 4 lakhs vide its order dated 2-6-2008 under order-in-original considering the said amount as pre-deposit relying on the decision of this Court rendered in case of Omkar Exports v. Union of India, 2009 240 ELT 355. Such refund had already been paid to the petitioner. Revenue had challenged the said order raising various grounds. Such departmental appeal was allowed by the Commissioner (Appeals) vide its order dated 19-12-2008 and the same was challenged before CESTAT on 19-1-2009. Tribunal relying on the decision of this Court rendered in case of Omkar Exports set aside the order of the Commissioner (Appeals) vide its order dated 3-3-2009 (Tri. -Ahmd.)].

(3.) In the meantime adjudicating authority which sanctioned the refund amount issued a fresh show cause notice on the ground that the refund was erroneously granted. After availing the opportunity of hearing, it confirmed the recovery of refund amount of Rs. 4 lakhs vide its impugned order dated 23-2-2009. Adjudicating authority has noted that personal hearing was offered to the assessee thrice who did not avail such opportunity of being heard in person. On noting that the principles of natural justice has been sufficiently followed, it decided the issue on the basis of the available evidence on record. The petitioner herein challenged the same before the Commissioner (Appeals) raising various grounds in such challenge. Such appeal was preferred on 3-8-2009 i.e. five months after the order impugned was passed. An application for condonation of delay was preferred along with the said appeal. It had been averred in the said application for condonation that the order-in-original had been received, but, was lost as the person concerned who received such an order did not file it at the proper place. Commissioner (Appeals) rejected this on the ground that there is delay of five months in filing the appeal. Invoking provisions of Section 35 of the Central Excise Act, it held that it does not enjoy the powers to condone delay beyond a period of 30 days.