NELLY GARMENTS PVT. LTD. Vs. UNION OF INDIA

JUDGEMENT

(1.) Heard learned advocates for the parties for final disposal of the petition. Brief facts are as under:

(2.) A show cause notice was issued to the petitioner on 26th June 2005 why Central Excise duty of Rs. 1,88,488/- should not be demanded on unutilized acrylic yarn indigenously procured, and a further duty of Rs. 2,20,756/- be not demanded on yarn sent to an exporter for which no warehousing certificates were produced. After one round of remand, the adjudicating authority by an order dated 24th August, 2007 confirmed the duty demand with interest and penalties. Against such order, statutory period of limitation prescribed was 60 days for filing appeal. Beyond such period, the Appellate Commissioner had the power to condone delay of 30 days. Admittedly, beyond this delay of period of 90 days, the Appellate Commissioner could not entertain any appeal. Under bona fide mistaken belief that such appeal could be presented on the date preceding the completion of period of 90 days, the petitioner filed appeal before the Appellate Commissioner admittedly on the 91st day of the receipt of the order-in-original. Such appeal was dismissed by the Appellate Commissioner by an order dated 28th September 2011 only on the ground of delay which he could not condone. Against such order, the petitioner preferred appeal before the Tribunal. The Tribunal by an order dated 1st June 2012 dismissed the appeal confirming the view of the Commissioner. The petitioner preferred further appeal before the High Court but withdrew the same for filing a writ petition on 31st July 2014.

(3.) Learned counsel Shri Dhaval Shah for the petitioner submitted that the adjudicating authority had passed the said order without participation of the petitioner. The petitioner has been contending that no notice of hearing was served on the petitioner. The petitioner, therefore, could not remain present personally or through authorized representative. The entire proceedings, therefore, went ex parte.