AMITARA INDUSTRIES LTD 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 facts in this petition are in narrow compass. The petitioner had filed the refund claim of Rs. 1 lakhs. This was on the ground of an inquiry initiated as per the the Directorate General of the Central Excise Intelligence( DGCEI for short) which related to excess payment of duty drawback. On 10.8.2001, panchnama in this respect was drawn and no adjudication process for confirming the dues were initiated.

(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. 1 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.