Gujarat High Court
M/S Kalp Corporation vs Union Of India on 23 September, 2021
Author: Rajendra M. Sareen
Bench: Sonia Gokani, Rajendra M. Sareen
C/SCA/14071/2020 ORDER DATED: 23/09/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 14071 of 2020
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M/S KALP CORPORATION
Versus
UNION OF INDIA
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Appearance:
A S TRIPATHI(7613) for the Petitioner(s) No. 1,2
AMAL PARESH DAVE(8961) for the Petitioner(s) No. 1,2
MR PARESH M DAVE(260) for the Petitioner(s) No. 1,2
MR DEVANG VYAS(2794) for the Respondent(s) No. 1,2
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CORAM:HONOURABLE MS. JUSTICE SONIA GOKANI
and
HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN
Date : 23/09/2021
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN)
1. This is a petition under Article 226 of the Constitution of India seeking following reliefs:
"20.(A) That Your Lordships may be pleased to issue a Writ of Certiorari or a Writ in the nature of Certiorari or any other appropriate writ, order or direction thereby quashing and setting aside OIA No.AHM-EXCUS-003- APP-33-2020-21 dated 20.8.2020 (Annexure-"I") passed by the Commissioner (Appeals) and OIO No.AHM-CEX- 003-ADC-PMR-005-19-20 dated 22.8.2019 (Annexure-"G") passed by the Additional Commissioner of CGST & Central Excise;Page 1 of 21 Downloaded on : Sun Jan 16 17:45:20 IST 2022
C/SCA/14071/2020 ORDER DATED: 23/09/2021 (B) That Your Lordships may be pleased to issue a Writ of Mandamus or any other appropriate Writ, order or direction thereby directing the Commissioner of Central Excise (Appeals), Ahmedabad to hear and decide on merits the petitioner's appeal filed against OIO No.AHM-
CEX-003-ADCPMR-005-19-20 dated 22.8.2019 (Annexure-"G") without considering it to be barred by limitation;
(C) Pending hearing and final disposal of the present petition, Your Lordships may be pleased to restraint the respondents, their servants and agents from taking any action including any coercive recovery against the petitioners pursuant to order No.AHM-EXCUS-003-APP- 33-2020-21 dated 20.8.2020 (Annexure-"I") passed by the Appellate Commissioner, Ahmedabad; (D) An ex- parte ad-interim relief in terms of Para 20(C) above may kindly be granted; (E) Any other further relief that may be deemed fit in the facts and circumstances of the case may also please be granted." 2. The petitioner firm, which is manufacturing plastic goods have two factories, one at village Dediyasan and other at Nagalpur, both in Mehsana District and the administration office is at Nagalpur, from where the accounting work as well as work of administration, which includes the placing of order of inputs etc. is being carried out. It is the case of the petitioner that Page 2 of 21 Downloaded on : Sun Jan 16 17:45:20 IST 2022 C/SCA/14071/2020 ORDER DATED: 23/09/2021 duty paid inputs had been received from M/s. Reliance Industries at Dediyasan involving Central Excise duty of Rs.11,06,477/-, the address in all 48 invoices was of Nagalpur factory since the administration office was located at Nagalpur. But, in fact all 48 consignments were brought to the Dediyasan factory with endorsement in each invoice that entire quantity of inputs were unloaded at Dediyasan."
2. A Show Cause Notice was issued by the Additional Commissioner in wake of the audit objection where essentially the challenge is to the effect that the invoice of M/s. Reliance bore address of Nagalpur unit and payment was also made from the bank account of Nagalpur unit and hence, the Cenvat credit taken by the petitioner of Dediyasan factory was inadmissible. This resulted at the end of adjudication by the Joint Commissioner against the petitioner.
2.1 The Commissioner (Appeals) allowed the petitioner's appeal and that had been challenged by the revenue before the CESTAT. This reference was not in the knowledge of the petitioner. Eventually the remand was made by the CESTAT.
3. This Court issued notice vide order dated 02.02.2021.
4. We have heard the learned advocate, Mr.Paresh M. Dave with learned advocate, Mr.Amal Dave for the petitioners.
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5. The grievance on the part of the petitioner is that Additional Commissioner passed an ex-parte adjudication order on remanded case & no appeal could be preferred on the ground of the same being time barred and the Commissioner (Appeals) has no power to condone the delay of more than 30 days under Section 135 of the Central Excise Act. Relying on the decision of this Court in case of M/s. Panoli Intermediate (India) Private Limited 2015 (326) ELT 532 (Guj.), it is urged that assessee since has suffered gross injustice on the ground of the Additional Commissioner having acted without the jurisdiction and the order having been passed in breach of principles of natural justice, the challenge is made.
6. Affidavit in reply is filed on behalf of the respondents by Dr. Jeetesh Nagori, Commissioner of CGST & Central Excise, Gandhinagar Commissioner, having his office at 2 nd Floor, Custom House, Near All India Radio, Navrangpura, Ahmedabad-380009, wherein he has contended thus:
6.1. At the outset, he has denied all the averments made and contentions raised by the petitioners in the present Petition.
6.2. It is submitted that M/s Kalp Corporation, 432-433, GIDC-II, Dediyasan, Mehsana-384002 is engaged in the manufacture of PP/HDPE Tapes, PP/HDPE Woven Fabrics, PP/HDPE Woven Sacks and PP/HDPE Waste falling under Chapter 39 of First Schedule of the Central Excise Tariff Act, 1985 and holding Central Excise Registration Page 4 of 21 Downloaded on : Sun Jan 16 17:45:20 IST 2022 C/SCA/14071/2020 ORDER DATED: 23/09/2021 No.AAFFK3008HXM002 and also availing facility of Cenvat credit under Cenvat Credit Rules, 2004. The petitioner had been manufacturing goods like Polypropylene/High Density Polyethylene Tapes, PP/HDPE Fabrics and PP/HDPE Woven Sacks at their two factories one of which is located at (i) 432-433, GIDC-II, Dediyasan, Mehsana-38400 and other at
(ii) 222/3-4, GIDC, Phase-I, Nagalpur, Mehsana. The petitioner had surrendered the Central Excise Registration of unit at Sr.No.2 on 17.11.2008.
6.3. It is submitted that the finished goods viz. PP/HDPE Tapes, PP/HDPE Woven Fabrics, PP/HDPE Woven Sacks and PP/HDPE Waste falling under Chapter 39 of First Schedule of the Central. Excise Tariff Act, 1985 manufactured by the petitioner were liable for excise duty and the petitioner was availing cenvat credit on the inputs like plastic granules used for manufacture of their said finished goods.
6.4. It is submitted that the period of dispute is June 2008 to February 2011 and is pertaining to their unit located at 432-433, GIDC-II, Dediyasan, Mehsana-38400.
6.5. It is submitted that petitioner had availed Cenvat Credit of Rs.11,06,477/- during the period from June, 2008 to February 2011 on the strength of Cenvatable invoices issued by M/s Reliance Industries Limited, which were in the name of M/s. Kalp Corporation, 222/3-4, GIDC, Phase- 1, Nagalpur, Mehsana (i.e. the another unit of the said Noticee) who had surrendered the Central Excise Registration on 17.11.2008. It was also observed that ledger Page 5 of 21 Downloaded on : Sun Jan 16 17:45:20 IST 2022 C/SCA/14071/2020 ORDER DATED: 23/09/2021 of M/s Reliance Industries Limited, that payment of the said invoices have been made by of M/s Kalp Corporation, 222/3-4, GIDC, Phase-I, Nagalpur, Mehsana, the second unit of the petitioner.
6.6. It is submitted that a show cause notice F.No.V.39/15- 66/Dem/OA/13 dated 09.07.2013 was issued to the petitioner proposing for recovery of the Cenvat credit amounting to Rs.11,06,477/- by invoking extended period of limitation along with interest and penalty imposable for contravention of law as the petitioner had availed credit on the inputs invoices addressed in the name of their other unit which had surrendered their registration.
6.7. It is submitted that Noticee has failed to establish that the goods covered by the invoices have been received and accounted for in the books of the account. The invoices on which cenvat credit had been availed were in the name of M/s Kalp Corporation, Nagalpur, Mehsana who had purchased the goods during the period April-2008 to Feb- 2011 from M/s Reliance Industries Ltd. The said purchased were accounted for in the books of account of M/s Kalp Corporation, Nagalpur, Mehsana only and payment were also made by them. M/s Kalp Corporation, Nagalpur was also registered unit who had already surrendered his registration certificate on 17.11.2008. No records has been produced by the petitioner which show that the receipt and consumption of raw materials and manufacture of goods out of that material and clearance of finished goods on payment duty.
Page 6 of 21 Downloaded on : Sun Jan 16 17:45:20 IST 2022C/SCA/14071/2020 ORDER DATED: 23/09/2021 6.8. It is submitted that Kind attention is: invited to Rule 9(5) of the Cenvat Credit Rules, 2004 which stipulates that:
(5) The manufacturer of final products or provider of output service shall maintain proper records for the receipt, disposal, consumption and inventory of the input and capital goods in which the relevant information regarding the value, duty paid, CENVAT credit taken and utilized, the person from whom the input or capital goods have been procured is recorded and the burden of proof regarding the admissibility of the CENVAT credit shall lie upon the manufacturer or provider of output service taking such credit."
6.9. It is submitted that the burden of proof regarding the admissibility of the CENVAT credit shall lie upon the manufacturer or provider of output service taking such credit but the petitioner has failed to establish the above facts with such documentary evidences. Merely producing some sample copy of LR, it cannot be established that the goods have been received and consumed in the manufacture of final products and accounted properly. The invoices on the basis of which credit has been availed by the said petitioner do not contain all details i.e. the name and address of the consignee factory or warehouse as required as per rule 11(2) of Central Excise Rules, 2002. Moreover, they failed to satisfy that the goods covered by the said invoices have been received and accounted for in their books of the account. The petitioner availed cenvat credit for about 3 years by making endorsement on the relevant Page 7 of 21 Downloaded on : Sun Jan 16 17:45:20 IST 2022 C/SCA/14071/2020 ORDER DATED: 23/09/2021 invoices. Even after surrendering the registration of M/s Kalp Corporation, Nagalpur, Mehsana on 17.11.2008, they had continued the such process which shows their malafide intention to avail cenvat credit.
6.10. It is submitted that Being aggrieved by the OIA No. AHM-EXUS-003-APP/100-14-15 dated 18.11.2014 Commissioner dated 18.11.2014 passed by the (Appeal-I), Central Excise, Ahmedabad, Department filed appeal before CESTAT, Ahmedabad on the ground that the said petitioner had availed credit on the inputs invoices addressed in the name of their other unit which had surrendered their registration. The Commissioner (Appeal-1), Central Excise, Ahmedabad without any evidence before him about the receipt and utilization of inputs mentioned in the respective invoices, held that inputs were received and utilized in the factory of the said Noticee.
6.11. It is submitted that The Hon'ble CESTAT remanded the case to adjudicating authority. The correspondence must have been made on the address of the factory of the petitioner in which this irregularity was detected. The closure of the premises of the petitioner's other unit in no manner will prevent receipt of government letter served on the registered address of the petitioner. The order dated. 08.11.2017 of the Hon'ble CESTAT remanding the case to verify that the inputs in question for which the invoices were received from RIL were received and utilized in the factory where Cenvat Credit was taken was served upon the Petitioner in person by the jurisdictional field office.
Page 8 of 21 Downloaded on : Sun Jan 16 17:45:20 IST 2022C/SCA/14071/2020 ORDER DATED: 23/09/2021 6.12. It is submitted that as regards passing an ex- parte OIO No. AHM-CEX-003-ADC-PMR-005-9-20 dated 22.08.2019, it is submitted that the personal hearing dated 29.01.2019, 08.03.2019 and 12.07.2019were 29.01.2019, issued and dispatched at the unit II situated at Dediyasan i.e. M/s Kalp Corporation, Unit II, 432-433, GIDC -II, Dediyasan, Mehsana -384002 as well as at the Nagalpur office i.e. M/s Kalp Corporation, 222/3-4, GIDC-1, Nagalpur, Mehsana, Gujarat, but all the letters were returned by the postal authority with remark that "Left without Instruction". Subsequently the SCN was decided Ex-Parte. The Additional Commissioner, CGST, Gandhinagar vide O1O No. AHM-CEX-003-ADC-PMR-005- 9-20 dated 22.08.2019 against confirmed the demand ground that the said petitioner had availed credit on the inputs invoices addressed in the name of their other unit which had surrendered their registration and thus had contravened the provisions of Rule 9 of the Cenvat Credit Rules, 2004 read with Rule 11 of Central Excise Rules, 2002 as contended hereinabove. They had neither given any copies of invoices along with ER-1 returns to the Department nor brought the facts to the knowledge of the department at any time. They had also failed to take corrective measures to amend the same in the cenvatable invoices with the satisfaction of the Jurisdictional Commissioner. Thus they had willfully suppressed the facts from the department. All the above acts of contravention on the part of the petitioner appeared with intention to evade payment of duty, as they never disclosed the factual position of availing cenvat credit on the strength of invoices which were not in the name of them. If the material facts Page 9 of 21 Downloaded on : Sun Jan 16 17:45:20 IST 2022 C/SCA/14071/2020 ORDER DATED: 23/09/2021 had not been pointed out be the audit then the Government would have lost the revenue demand in the SCN. These acts on their part established their malafide intention to avail inadmissible cenvat credit of duty without intimating to the department.
6.13. It is submitted that further the above referred OIO dated 22.08.2019 was served to M/s Kalp Corporation on 22.09.2019. The applicant failed to file appeal before Hon'ble Commissioner (Appeals) against the said OIO within the period of limitation, or within the condonable period under Section 35 of the Central Excise Act on account of delay on his part alone and late serving of OIO has nothing to do with it as time limit of filing an appeal before Commissioner (Appeals) is the receipt of said order by the assessee.
6.14. It is submitted that The OIO No. AHM - CEX 003
- ADC PMR 005 19-20 dated 22.08.2019 was issued in compliance to CESTAT order in Departmental's Appeal filed against the OIA no. AHM-EXCUS-003-APP/100-14-15 dated 18.11.2014 allowing the assessee's appeal. The departmental's appeal was filed on the following grounds:
"M/s Kalp Corporation failed to satisfy the revenue department that the goods covered by the said invoices have been accounted for in the books of the accounts of the said assessee. The said assessee has availed cenvat credit for about 3 years by making endorsement on the relevant invoices. Even after surrendering the registration Page 10 of 21 Downloaded on : Sun Jan 16 17:45:20 IST 2022 C/SCA/14071/2020 ORDER DATED: 23/09/2021 of M/s Kalp Corporation, Nagalpur, Mehsana on 17.11.2008 they had continued such process which show their malafide intention to avail cenvat credit.
6.15. It is submitted that against the OIA No. AHM- EXUS-003-APP/100-14-15 dated 18.11.2014 passed by Commissioner (Appeal-I), Central Excise, Ahmedabad, which allowed the petitioner's appeal on merit, the Department had filed appeal before CESTAT, Ahmedabad on the ground that the said petitioner had availed credit on the inputs invoices addressed in the name of their other unit which had surrendered their registration. The Commissioner (Appeal-I), Central Excise, Ahmedabad without any evidence before him about the receipt and utilization of inputs mentioned in the respective invoices, held that inputs were received and utilized in the factory of the said Noticee.
6.16. It is submitted that the personal hearing letter dated 29.01.2019, 08.03.2019 and 12.07.2019 were issued and dispatched at the unit II situated at Dediyasan i.e. M/s Kalp Corporation, Unit 11, 432-433, GIDC-II, Dediyasan, Mehsana 384002 as well as at the Nagalpur office i.e. M/s. Kalp Corporation, 222/3-4, GIDC-1, Nagalpur, Mehsana, Gujarat, but all the letters were returned by the postal authority with remark that "Left without Instruction".
Subsequently the SCN was decided Ex-Parte by the Additional Commissioner, CGST, Gandhinagar vide OIO No. AHM-CEX-003 ADC-PMR-005-19-20 dated 22.08.2019.
Page 11 of 21 Downloaded on : Sun Jan 16 17:45:20 IST 2022C/SCA/14071/2020 ORDER DATED: 23/09/2021 6.17. It is submitted that the above referred OIO dated 22.08.2019 was served to M/s Kalp Corporation on 22.09.2019. The petitioner failed to file appeal before learned Commissioner (Appeals) against the said OIO within the period of limitation, or within the condonable period under Section 35 of the Central Excise Act on account of delay on his part alone and late serving of OIO has nothing to do with it as time limit of filing an appeal before Commissioner (Appeals) is the said order by the assessee. It is submitted that the petitioner's request for allowing this petition which will allow them an opportunity of contesting the case of merits which will lead to repetition of the procedure.
6.18. It is submitted that the said petitioner had availed credit on the inputs invoices addressed in the name of their other unit which had surrendered their registration and thus had contravened the provisions of Rule 9 of the Cenvat Credit Rules, 2004 read with Rule 11 of Central Excise Rules, 2002 as contended hereinabov. They had neither given any copies of invoices along with ER-1 returns to the Department nor brought the facts to the knowledge of the department at any time. They had also failed to take corrective measures to amend the same in the cenvatable invoices with the satisfaction of the Jurisdictional Assistant Commissioner. Thus they had willfully suppressed the facts from the department. All the above acts of contravention on the part of the petitioner appeared with intention to evade payment of duty, as they never disclosed the factual position of availing cenvat credit on the strength of invoices which were not in the name of them. If the material facts Page 12 of 21 Downloaded on : Sun Jan 16 17:45:20 IST 2022 C/SCA/14071/2020 ORDER DATED: 23/09/2021 had not been pointed out be the audit then the Government would have lost the revenue demand in the SCN. These acts on their part established their malafide intention to avail inadmissible cenvat credit of duty without intimating to the department.
6.19. It is submitted that the Principal of Natural Justice was judiciously followed and the demand was confirmed on merit as contended hereinabove.
6.20. It is submitted that the above referred OIO dated 22.08.2019 was served to M/s Kalp Corporation on 22.09.2019. The petitioner failed to file appeal before learned Commissioner (Appeals) against the said OIO within the period of limitation, or within the condonable period under Section 35 of the Central Excise Act on account of delay on his part alone and late serving of OIO has nothing to do with it as time limit of filing an appeal before Commissioner (Appeals) is the date of receipt of said order by the assessee. The petitioner's request for allowing this petition which will allow them an opportunity of contesting the case on merits which will lead to repetition of the procedure.
6.21. He has submitted that in view of what is contended hereinabove, the prayers made by the petitioner are not required to be granted and the petition is required to be dismissed.
7. We have extensively heard Mr.Dave, learned advocate for the petitioner, who has essentially emphasized on the Page 13 of 21 Downloaded on : Sun Jan 16 17:45:20 IST 2022 C/SCA/14071/2020 ORDER DATED: 23/09/2021 principle of natural justice by the respondent authority. There is gross violation of principle of natural justice by adjudicating authority in adjudicating inasmuch as submissions and evidence on record have not been considered while passing the ex-parte order on 22.08.2019.
8. Moreover, there is also non-compliance of section 35C of the Central Excise Act in conducting and concluding de- novo examination after the matter was remanded by the CESTAT and therefore, there is violation of principle of natural justice. Moreover, without entering into the merits of the matter, Mr.Dave has urged this Court that the order in original cannot be sustained for not having availed an any opportunity of hearing by the authority while adjudicating the dispute.
9. It is mandatory provision laid down under section 27C of the Act for serving any decision, order, summons or notice to the parties. In the present case, it is nowhere recorded not proved that the notice for hearing notice was sought to be served upon the petitioner firstly by tendering at the petitioner's premises or sending by registered AD Post, or Speed Post or affixing notice at any conspicuous part of the factory or office or residential premises, of the petitioner. When the notice could be served upon the petitioner, the same can be affixed under the Panchnama in the office of the adjudicating authority. No such kind of procedure is adopted by the respondent authority.
10. The provisions under section 37 are absolute and there has been any discretion vested to relax this provision to any Page 14 of 21 Downloaded on : Sun Jan 16 17:45:20 IST 2022 C/SCA/14071/2020 ORDER DATED: 23/09/2021 authority or to allow hearing ex-parte without giving an opportunity of being heard.
11. Thus, the Additional Commissioner, adjudicating authority proceeded ex-parte and mandatory provisions under section 37C is not complied with after the de-novo proceeding was initiated.
12. As observed in the case of Regent Overseas Pvt. Ltd. Vs. Union of India, reported in 2017(6) GSLT 15 (Guj.), in para 8 has observed and held as under :-
8. Thus, under clause (a) of sub-section (1) of Section 37C of the Act, in case of service of notice by speed post, the same has to be with proof of delivery. To put it differently, service by speed post is valid provided there is proof of delivery. In the present case, it is an admitted position that the letter of personal hearing was sent to the petitioners through speed post; however, though details of date of despatch, etc., have been produced on record by the learned counsel for the respondents, including tracking number, there is no material by way of proof of delivery to the petitioners; whereas, on the other hand, it is the specific case of the petitioners that they have not received the notice for personal hearing. Thus, in view of the mandate of Section 37C of the Act, which provides for notice by speed post with proof of delivery, it is incumbent upon the respondents to furnish proof of delivery. In the absence of any Page 15 of 21 Downloaded on : Sun Jan 16 17:45:20 IST 2022 C/SCA/14071/2020 ORDER DATED: 23/09/2021 proof of delivery, it cannot be said that there is effective service of notice, as contemplated under Section 37C of the Act. In the absence of service of notice of personal hearing, the petitioners or their representative could not remain present before the adjudicating authority during the course of personal hearing and hence, the impugned order which has been passed ex parte is clearly in breach of principles of natural justice.
13. In the case of Messers CTM Technical Textiles LTD Versus Union of India, reported in 2020 (12) TMI 1100 this Court has observed and held as under :-
"When the statute provides for a particular procedure, the authority has to follow the same and cannot be permitted to act in contravention of the same. It has been hitherto uncontroverted legal position that where a statute is required to do something in a certain way, the thing must be done in that way or not at all. The other methods or mode of performance are impliedly and necessarily forbidden. The aforesaid settled legal position is based on a legal maxim "expressio unius est exclusio atlerius", meaning thereby that if a statute provides for a thing to be done in a particular way, then it has to be done in that manner and in no other manner and following other course is not permissible.
14. Reluctantly, without touching the merits of the matter, Page 16 of 21 Downloaded on : Sun Jan 16 17:45:20 IST 2022 C/SCA/14071/2020 ORDER DATED: 23/09/2021 it can be held that apparently there is violation of principles of natural justice while adjudicating the case of the petitioner by the Additional Commissioner.
15. The next submission as to whether the delay in filing the appeal can be condoned by the Commissioner or not.
16. The Larger Bench of this Court formulated the following questions in the case of Panoli Intermediate (India) Pvt. Ltd. Versus Union of India, reported in 2015(326) ELT 532 (Gujarat).
"(1.) Whether the period of limitation
provided of 60 days, for filing an appeal
under Section 35 of the Central Excise Act, 1944, could be extended only upto 30 days as provided by the proviso or the delay beyond the period of 90 days could also be condoned in filing an appeal?
(2.) Where a statutory remedy or appeal is provided under Section 35 of the Central Excise Act, 1944 and the delay cannot be condoned under Section 35 beyond the period of 90 days, then whether Writ Petition under Article 226 of the Constitution of India would lie for the purpose of condoning the delay in filing the appeal?
(3.) When if the statutory remedy or appeal under Section 35 is barred by the law of Page 17 of 21 Downloaded on : Sun Jan 16 17:45:20 IST 2022 C/SCA/14071/2020 ORDER DATED: 23/09/2021 limitation whether in a Writ Petition under Article 226 of the Constitution of India, the order passed by the original adjudicating authority could be challenged on merits?
The aforesaid first two questions are answered by the Larger Bench in negative that the limitation provided under section 35 of the Act cannot be condoned in filing the appeal beyond the period of 30 days.
This Court in the case of Panoli Intermediate (India) Pvt. Ltd. (supra) proceeded to answer the questions as under:
(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 thatA) The petition under Article 226 of the Constitution can be preferred for challenging Page 18 of 21 Downloaded on : Sun Jan 16 17:45:20 IST 2022 C/SCA/14071/2020 ORDER DATED: 23/09/2021 the order passed by the original adjudicating authority in following circumstances that -
A.1) The authority has passed the order without jurisdiction and by assuming jurisdiction which there exist none, or A.2) Has exercised the power in excess of the jurisdiction and by overstepping or crossing the limits of jurisdiction, or A.3) Has acted in flagrant disregard to law or rules or procedure or acted in violation of principles of natural justice where no procedure is specified.
The Larger Bench of this Court in the case of Panoli Intermediate (India) Pvt. Ltd. (supra) has further observed that the aforesaid discussion goes to show that it is not possible to observe that in a case where the limitation period of preferring appeal or further period of condonation of delay is over, the High Court will have no jurisdiction under Article 226 of the Constitution but the exercise of such power has to be in exceptional cases where gross injustice is satisfactorily demonstrated. Otherwise, in normal circumstances, the High Court would give appropriate weightage to the statutory provisions because the things which cannot be done directly as per the statute can not be permitted to be done indirectly in writ Page 19 of 21 Downloaded on : Sun Jan 16 17:45:20 IST 2022 C/SCA/14071/2020 ORDER DATED: 23/09/2021 jurisdiction unless a grave and strong case is made out before the High Court that noninterference to the order under challenge would result into a gross injustice to the party suffering the order.
17. We are of the opinion that the circumstances and the reasons assigned by the petitioner for not filing the appeal within the stipulated period of limitation are justified and the injustice is caused to the petitioner which has been satisfactorily demonstrated.
18. Resultantly, the impugned order of Additional Commissioner dated 27.08.2019 is hereby quashed and set aside without entering into the merits of the matter and as observed in the decision in the case of Panoli Intermediate (India) Pvt. Ltd. (supra) and as observed by the Division Bench of this Court in the case of Yantraman Automac Pvt Ltd. in Civil Application No.90 of 2013 and in the case of P.S.L. Limited in Civil Application No.748 of 2013, we deem it fit to condone the delay invoking powers under Article 226 of the Constitution of India, and remand the matter to the Commissioner (Appeals), who shall decide the proceedings on remand, after giving fullest opportunity to the petitioner, without in any way being influenced by this order and on merits. None of the findings and observations recorded in this order would in any manner influence or prejudice either side. Parties are at liberty to raise their contentions before the Commissioner (Appeals).
19. The Court has chosen not to enter into the merits of the matter and all contentions with regard to the merits are Page 20 of 21 Downloaded on : Sun Jan 16 17:45:20 IST 2022 C/SCA/14071/2020 ORDER DATED: 23/09/2021 open for the parties to agitate.
20. In view of the above, present petition stands disposed of.
(SONIA GOKANI, J) (RAJENDRA M. SAREEN,J) R.H. PARMAR..
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