TaxTMI 
TaxTMI 
2009 (7) TMI 824
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....ships further be pleased to issue a writ of certiorari or any other appropriate writ, order of direction quashing and setting aside the impugned order dated 25-11-2004 passed by respondent No. 3 as per Annexure 'A' to this petition; on in the alternative. (C) Your Lordships be pleased to issue a writ of certiorari or any other appropriate writ, order or direction quashing and setting aside the impugned order dated 16-6-2006 as per Annexure 'E' to this petition passed by the Customs, Excise and Service tax Appellate Tribunal, West Zonal Bench at Mumbai and further be pleased to direct the Hon'ble Tribunal to decide the petitioner's Appeal No. E/2607/05 as above said on merits and in accordance with law in the interest of justice; or....
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....ring 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....
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....e will deal with the facts in each individual case." This situation has given rise to the present petition. 4.We have heard learned advocate Mr. Shelat for the petitioner and learned Standing Counsel Mr. Parikh for the respondent. 5. This petition is opposed to by the respondents mainly on the ground of its maintainability and on condonation of delay part. A reliance is placed on the decisions of the Apex Court in the case of Singh Enterprises v. Commissioner of C.E.X. Jamshedpur, 2008 (221) E.L.T. 163 (S.C.), where a view is taken that, period of limitation provided under special Act cannot be condoned by resorting to Section 5 of the Limitation Act, so also the decision in the case of Commissioner of Customs and Central Exc....
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....to challenge the order-in-original passed by the adjudicating authorities. This order was not challenged by the respondents authorities before the higher forum. The period of limitation is a defence available to the respondent and by not challenging the said decision of Coordinated Bench the respondent can be said to have acquiesced to the observations made permitting the petitioner to challenge the order-in-original before this Court, irrespective of limitation and, therefore, in this peculiar circumstances we are of the view that the objection as to maintainability and question of limitation cannot be accepted against the petitioner. We may hestion to add that this view, we are taking in peculiar facts of this case, namely, the order pass....