2019 (6) TMI 1630

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....l Order dated 06.10.2017 passed by Tribunal." 3] After the order-in-original dated 24th July, 2015 was made by Assistant Commissioner of Central Excise and Customs Division-II, under the provisions of the Central Goods and Service Tax Act, 2017 (formerly, Central Excise Act, 1944), the petitioner instituted appeal before the Commissioner of Central Excise & Customs, (Appeals-III). However, this appeal was instituted beyond period of 90 days, i.e., beyond the period of maximum extendable period by the Appellate Authority. Accordingly, the Appellate Authority by order dated 20th April, 2016 dismissed the same as time barred. This dismissal was upheld by the Tribunal by its order dated 6th October, 2017. 4] Insofar as the orders dated....

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....answer the question (1) Question No.1 is answered in negative by observing that the limitation provided under Section 35 of the Act cannot be condoned in filing the appeal beyond the period of 30 days as provided by the proviso nor the appeal can be filed beyond the period of 90 days. (2) The second question is answered in negative to the extent that the petition under Article 226 of the Constitution would not lie for the purpose of condonation of delay in filing the appeal. (3) On the third question, the answer is in affirmative, but with the clarification that A) The petition under Article 226 of the Constitution can be preferred for challenging the order passed by the original adjudicating authority in....

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.... by Appellate Authority or Tribunal in the event he chose to invoke such appellate remedy. On the scope of judicial review in such matters, the Full Bench has in fact followed the ruling of the Full Bench of the Gujarat High court in Panoli Intermediate (India) Pvt. Ltd. (supra). 9] Mr. Prabhakar submits that in the facts and circumstances of the present case, the Assistant Commissioner of CEX, Boisar was not justified in invoking the extended period of limitation because there was absolutely no material on record to ascertain any inference of deliberate intention to evade duty. He submits that this was a case of short payment of duty and not evasion of duty. He submits that the entire assessment is barred by limitation and the impugned ....