2017 (10) TMI 1664

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....dia reported in 2017(347) E.L.T. 426(Kar.). The relevant extract of the said judgment is quoted below for ready reference: "1. Writ Petition No. 49560/2016 is filed assailing the impugned order Annexure- H dated 25.08.2016 passed by the respondent-Commissioner of Central Excise (Appeals-I), Bengaluru, rejecting the appeal filed by the petitioner-assessee as barred by limitation of 184 days. 2. Learned counsel appearing for the Commissioner of Appeals submitted that the Commissioner has no power to condone the delay beyond the period of 30 days in terms of Section 35(1) of the Central Excise Act, 1944, which provides for a period of 60 days for filing an appeal and the proviso thereto empowers the Commissioner of Appeals to....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....hat since the impugned adjudication order suffers from illegality, the delay deserves to be condoned by this Court in exercise of the extraordinary jurisdiction of Article 226 of the Constitution of India and the respondent-Commissioner of Appeals may be directed to decide the appeal on merits. He relied upon a Division Bench decision of this Court in the case of M/s. Practice Strategic Communications India Private Limited -versus- The Commissioner of Service Tax, in WP No. 13917/2016 decided on 04.07.2016, wherein this Court has held as under; "11. In view of the above referred decision of this Court, if this Court finds that the authority has passed the order without jurisdiction or has exercised the power in excess of the jurisd....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

...., we find that the case may fall in the exceptional category for exercise of the power under Article 226 of the Constitution. xxx xxx xxx xxx 15. After the aforesaid condition is complied with, the matter shall stand restored on the file of the Commissioner (Appeals) with a further direction that he shall consider the appeal on merits in the light of the observations made by this Court in the above judgment and after giving opportunity of hearing to all concerned. 16. It is made clear that the appeal shall be decided within a period of three months from the date of compliance of the condition of deposit of the amount and cost to the respondent. It is also observed that the contentions of both the sides sh....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....r of Appeals, for decision on merits by him. 10. The petitioners-assessees may appear before the said authority in the first instance on 06.01.2017 and thereafter the appeal may be decided within a period of three months. 11. Writ Petitions are disposed of accordingly. No costs." 2. The present impugned order passed by the respondent No. 2-Commissioner of Central Excise (Appeals), Mysore, refusing to condone the delay in filing appeal beyond the prescribed period of 90 days, has resulted in the impugned dismissal of the appeal. 3. The learned counsel for the petitioner submitted that the delay was caused on account of illness of the concerned official of the petitioner-company and therefore, the said delay caused for....