ASHOKBHAI VALLABHBHAI GOL Vs. UNION OF INDIA

JUDGEMENT

(1.) RULE : The Petitioner has approached this Court with this petition under Article 226 of the Constitution of India making following prayers:

(2.) THE Petitioner runs Devikrupa Industries at Rajkot. The officer of the Excise Department had searched the premises on 9 -1 -2003 and thereafter a show cause notice was served on the Petitioner on 5 -12 -2003 by the Jt. Commissioner, Custdms and Central Excise calling upon him to show why duty of Rs. 8,69,280/ -should not be levied under Section 11A of the Central Excise Act, 1944 from the Petitioner alongwith interest and penalty under Section 11AB and Section 11AC. A reply to the show cause notice was given by the Petitioner on 11 -2 -2004. After hearing the Petitioner's authorised representative on the issue, the Respondent No. 3 passed order on 25 -11 -2004 and directed the Petitioner to pay the said amount of Rs. 8,69,280/ - with penalty of like amount and the interest at appropriate rate. On receiving the copy of the said order on 24 -12 -2004 the Petitioner was required to prefer appeal before the Commissioner (Appeals) within 60 days. The Petitioner, however, preferred an appeal under Section 35 of the Act on 31 -3 -2005 i.e. After delay of 37 days. The Petitioner had also prayed dispensing with the requirement of making pre -deposit of duty and penalty. The Respondent No. 2, however, dismissed the appeal as having been time barred. The Petitioner challenged that order before the Customs, Excise and Service Tax Appellate Tribunal West Zonal Bench at Mumbai (CESTAT) under Section 35C of the Act which came to be registered as Appeal No. E. 2607/2005. The stay application came to be rejected by the Tribunal by order dated 19 -9 -2005 requiring the Petitioner to deposit an amount of Rs. 8,69,280/ - by 31 -10 -2005, failing which the appeal was ordered to be dismissed without referring the same to the Tribunal. On 17 -5 -2006, the Tribunal ordered to restore the appeal to its original number and fixed the hearing of the stay application on 15 -6 -2006. The Petitioner's advocate was not present before the Tribunal and the stay application and appeal came to be rejected on that very day.

(3.) THE Petitioner therefore challenged the provisions contained in proviso to Section 35(i) of the Central Excise Act on its vires and in the alternative order passed by the Tribunal and the order -in -original, so also the order of refusal of condonation of delay passed by the Respondent No. 2 by way of preferring Special Civil Application No. 27055 of 2006. The said petition came to be disposed of by order dated 13 -3 -2008 whereby the petition came to be rejected while making following observations;