KWALITY TUBE INDUSTRIES Vs. UNION OF INDIA

JUDGEMENT

(1.) BOTH these petitions challenge consolidated order dated 11 -5 -1999 made by Commissioner (Appeals), whereby, the delay in preferring Appeals by the petitioner before Commissioner (Appeals) was not condoned and the appeals came to be dismissed as being barred by limitation. The order of Commissioner (Appeals) has been confirmed by the Tribunal vide order dated 27 -9 -2005. The petitioner had also preferred Restoration/Rectification Application, which came to be rejected by the Tribunal vide order dated 24 -4 - 2007 2009 235 ELT 695. All the orders, made by Commissioner (Appeals) and Tribunal have been challenged primarily on the ground that provisions of Section 35(1) of the Central Excise Act, 1944 which restrict the powers of Commissioner (Appeals) to condone the delay in preferring appeals to an extended period of 90 days is ultravires.

(2.) HEARD learned advocate for the petitioner. In so far as challenge to the vires of the provision is concerned, learned advocate could not dispute the fact that the said issue now stands concluded against the petitioner vide judgment rendered in case of D.R. Industries Ltd. and Anr. v Union of India and Ors., 2008 229 ELT 24f. However, learned counsel for the petitioner placed reliance on the observations made in Paragraph No. 19 of the judgment in support of the case of the petitioner to submit that in extra ordinary cases it is permissible to an assessee to invoke writ jurisdiction of the High Court so as to avoid gross injustice. There can be no dispute to the aforesaid exception as enunciated in the aforesaid judgment. However, when the facts of the present case are examined, it is found that for both the periods, the appeals were filed by the petitioner more than a year after the issuance of the orders in original and only reason in support of application for condonation of delay was that the orders in original were received by former excise Clerk, who had misplaced the same and left the job without handing over the charge to anyone.

(3.) IN the facts of the case, it is not possible to state that there are any extra ordinary circumstances which would warrant exercise of powers under Article 226 of the Constitution of India so as to entertain the cases on merits of the controversy between the parties. In the result, both, in law and in facts, the petitioner has not been able to make out any case and both the petitions are accordingly summarily rejected.