- (1.) This appeal has been preferred against the judgment and order dated 12th December, 2014, passed in W.P. 6802(W) of 2014 (Satish Kumar Sharma v. Union of India and Ors.), whereby the writ petition was dismissed by the learned Single Judge, holding, inter alia, as under : "In W.P. 6802(W) of 2014, the 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 , 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 existence as two orders cannot operate in the field. The Appellate Authority have rejected the application for condonation of delay which resulted into the dismissal of an appeal itself. There is no ambiguity in the order of the Appellate Authority in dismissing the appeal having time barred, as the statute does not provide the power to condone delay beyond certain limits. This Court, therefore, does not find any fault in the order of the Appellate Authority as the order-in-original has merged into it. The writ petition, therefore, fails."
(2.) It appears that a writ petition was filed challenging the order dated 30th November, 2012 passed by the Additional Commissioner, Central Excise and Service Tax Commissionerate, Bolpur, whereby the demand of service tax of Rs. 12,65,335/- was confirmed, interest was charged and penalty was imposed and the noticee, the appellant herein, was directed to have service tax registration for cargo handing service. Also under challenge was the order dated 7th November, 2013 passed by the Commissioner of Central Excise (Appeals-III) dismissing the appeal, preferred against the order dated 30th November, 2012, being time barred.
(3.) It is submitted by Mr. Chakraborty, learned advocate for the appellant, since the appeal was dismissed by order dated 7th November, 2013 by the Commissioner of Central Excise as time barred, in view of the law laid down in the judgment in Raja Mechanical Co. (P) Ltd. v. Commissioner of C.EX. Delhi- I, 2012 279 ELT 481 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. v. Mohammad Nooh, 1958 AIR(SC) 86, Patel Stationers Pvt. Ltd. v. Union of India, 2015 320 ELT 798, Amitara Industries Ltd. v. Union of India,2014 305 ELT 322, Ravi Pharmaceuticals P. Ltd. v. Union of India, 2014 306 ELT 474, Lathia Industrial Supplies Co. Pvt. Ltd. v. Commissioner, 2014 307 ELT 460, JCB India Limited v. Union of India, 2014 301 ELT 209, Himgiri Ispat Pvt. Ltd. v. Customs, Excise & Service Tax,2014 305 ELT 36, Texcellence Overeseas v. Union of India, 2013 293 ELT 496, Hans Metal Pvt. Ltd. v. Union of India, 2010 254 ELT 546 and D.R. Industries Ltd. & Anr. v. Union of India and Ors, 2008 229 ELT 24,. Reliance has also been placed on an unreported judgment delivered on 27th July, 2015 in W.P. 1545 of 2008 (Andrew Yule Co. Ltd. v. Commissioner of Central Excise, Kol-V Commissionerate and Ors.) and also on an unreported judgment delivered on 2nd August, 2013 in W.P. 1524 of 2008 (Brishti Vinimay Pvt. Ltd. v. Commissioner of Central Excise and Ors.) and the order passed in appeal therefrom on 21st January, 2014 in GA No. 3236 of 2013/APOT No. 538 of 2013 (Brishti Vinimay Pvt. Ltd. v. Commissioner of Central Excise and Ors.). Mr. Chakraborty submits that his client is ready and willing to deposit the entire demand of service tax as a condition precedent for a fresh hearing before the Additional Commissioner.;