- (1.) Instant writ petition has been preferred against the order dated 17th October, 2014 passed by Commissioner (Appeals) in Appeal Nos. 107 to 114 / RAN / 2014 whereby the appeals preferred by the appellants, including this petitioner, have been dismissed mainly on the ground that these appeals have been preferred beyond the period of condonable delay.
(2.) Counsel for the petitioner submitted that petitioner has filed a writ petition (T) No. 7713 of 2013 on 17th December, 2013 before this Court against the order in original dated 31st December,2012 passed by Additional Commissioner of Central Excise, Ranchi which was dismissed on 25th March, 2014. Previously another party had preferred a writ petition in which intervention application was preferred by this petitioner in writ petition (T) no. 1263 of 2013 along with other writ petitioners. These batch of writ petitions were disposed of by this Court vide order dated 3rd September, 2013 and, therefore, appeals were preferred against the order in original passed by Additional Commissioner, Central Excise, Ranchi by the petitioners claiming benefit of Section 14 of the Limitation Act of 1963, to exclude the time consumed in disposal of the writ petition before this Court in computation of the delay. Counsel for the petitioner has relied upon the decision rendered by the Hon'ble Supreme Court Ketan V. Parekh Vs. Special Director, Directorate of Enforcement and another, 2011 15 SCC 30 as also relied upon the decision rendered by Hon'ble Supreme Court Coal India Limited Vs. Ujjal Transport Agency, 2011 1 SCC 117. Counsel for the petitioner has also relied upon the decision of Hon'ble Gujrat High Court (Guj.) Adani Enterprises Ltd. Vs. Union of India, 2012 286 ELT 676. On the basis of these decisions it is submitted that Section 14(2) of the Limitation Act 1963 is applicable for condonation of delay by the Commissioner (Appeals). This aspect of the matter has not been properly appreciated by the Commissioner (Appeals) and, therefore, this petition has been preferred. It has been submitted that delay may be condoned which is approximately of 16 months and the matter may be remanded to the Commissioner (Appeals) for its decision on merits.
(3.) Counsel for the respondents has submitted that no error has been committed by Commissioner(Appeals) while dismissing the appeals preferred by the petitioners of Appeal Nos. 107 to 114/ RAN/ 2014 as delay was not condonable under section 85(3A) of the Finance Act, 1994. It has further been submitted by counsel appearing on behalf of Union of India that it has specifically been mentioned in the order in original passed by Additional Commissioner Central Excise, Ranchi dated 31st December, 2012 that demand of service tax has been affirmed against this petitioner as well as interest under section 75 of the Finance Act, 1994 has also been affirmed. There was violation of certain circulars and rules of the Finance Act, 1994. Penalty was also affirmed under Section 77 of the Finance Act, 1994.Thus, there was no ambiguity at all. So far as liability of this petitioner is concerned in the order in original passed by Additional Commissioner, Central Excise, Ranchi this petitioner could have prefer appeal within 60 days+30 days maximum otherwise, if the appeal is preferred beyond ninety days the delay is not condonable in view of the decision rendered by Hon'ble Supreme Court Singh Enterprises Versus Commissioner of Central Excise Jamshedpur and others, 2008 3 SCC 70 . Counsel for the respondents has also relied upon decisions rendered by Hon'ble Bombay High Court in writ petition No. 1830 of 2013 with writ petition (Civil) no. 3419 of 2014 decided on 24th December, 2014. It is further submitted by learned counsel for the respondent-Union of India that though order in original was passed on 31st December, 2012 which clearly affirms the demand notice issued upon this petitioner including interest and penalty, this petitioner preferred a writ petition before this Court being W.P.(T) No. 7713 of 2013 on 17th December, 2013 which was dismissed vide order dated 25th March, 2014. Thus, no benefit of Section 14(2) of the Limitation Act, 1963 can be given to this petitioner. As such, no error has been committed by the Commissioner (Appeals) in not condoning the delay. Even otherwise also, as submitted by the counsel for the respondent-Union of India that prima-facie Section 14 of the Limitation Act 1963 is not applicable because there was no want of jurisdiction where the writ petition was preferred. Normally, the assesses are taking a chance by filing a matter directly in the High Court which is always at the peril and risk of the petitioner, specially when delay is not condonable. This petitioner is not exception to "chance taking petitioner." This aspects of the matter have been taken care of by deciding the matters in terms of reported decisions as stated hereinabove. Hence, this writ petition may not be entertained by this Court.;