2015 (8) TMI 1257

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.... petitioner has challenged both the orders i.e. the original order and the appellate order in the writ petition. The petitioner tried to impress this Court that the order in original is palpably illegal and contrary to the judicial pronouncement and, therefore, the writ petition is otherwise maintainable. Much argument is advanced to convince the Court that it is an exceptional case and the justice demands the interference and invocation of power of judicial review. In view of the ratio laid down in Shyam Sundar Sarma (supra), the order of the sub-ordinate authority must be the order of the higher authority upon rejection of an application seeking condonation of delay. It is, therefore, the order of the Appellate Authority which is an exist....

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.....) particularly in paragraph 12 thereof, as the order dated 30th November, 2012 passed by the Additional Commissioner does not merge with the order passed by the Commissioner, the order of the Additional Commissioner stands. Since the order of the Additional Commissioner is ex facie bad, in view of the exceptional circumstances as made out in the writ petition, the learned Single Judge should have issued appropriate writ for undoing the wrong done. In support of his submission, Mr. Chakraborty has relied on the following judgments, which are as under : State of U.P. -vs- Mohammad Nooh: AIR 1958 SC 86(1), Patel Stationers Pvt. Ltd. -vs- Union of India : 2015(320) E.L.T. 798 (Guj.), Amitara Industries Ltd. -vs- Union of India : 2014(305) E.L.....

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....ory appeal and also the time limit for condoning the delay in preferring such statutory appeal, in view of the judgment of the Full Bench in Union of India -vs- Jagadish Prasad Jalan Nandalal : 2012(4) CHN (Cal) 1, the judgment in Raj Chemicals -vs- Union of India : 2013 (287) E.L.T. 145 (Bom.) and in Khanapur Taluka Co-op. Shipping Mills Ltd. -vs- Commissioner of Central Excise, Pune-II : 2013 (292) E.L.T. 16 (Bom.), the submission of the appellant is not tenable. In order to appreciate the issue it is necessary to refer to the relevant portion of section 35 of the Central Excise Act, 1944, which is as under: Section 35(1): "Any person aggrieved by any decision or order passed under this Act by a Central Excise Officer lower in rank than....

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....ppeal. The question is whether the appellant can challenge the order passed by the Additional Commissioner, as there is patent illegality as contended by the appellant, and calls for intervention in the writ jurisdiction. In our view, if we accept the submission of the appellant that the writ petition challenging the order passed by the Additional Commissioner has to be heard on merits though dismissed on the ground of limitation, in an appeal under section 35, it would render the said section as otiose and would open a flood gate of litigations. The very object of section 35 would be defeated. It would encourage the litigants to approach the High Court under the writ jurisdiction at any point of time in breach of the provisions contained ....