2018 (8) TMI 615 – PATNA HIGH COURT – TMI – Condonation of delay in filing appeal – Section 35H of the Central Excise Act – Held that:- The petitioner was served with a duly attested copy of the order dated 19.03.2014, and the Commissioner (Appeals) has found that there is no denying the fact that the appellant (present petitioner) had received the attested copy of the said order.
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Against the impugned order as contained in Annexure-‘12’ passed by Commissioner (Appeals), the petitioner has got statutory remedy before ‘CESTAT’, therefore, finding that the petitioner has got the statutory remedy against the impugned order dated 19.03.2014 as well as the order contained in Annexure-’12’ to the present writ application, we are not inclined to exercise our powers in extra-ordinary writ jurisdiction to entertain the present writ application.
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Application dismissed. – Civil Writ Jurisdiction Case No.12073 of 2018 Dated:- 3-8-2018 – MR. RAJEEV RANJAN PRASAD J. Appearance : For the
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r (Appeals), Customs, Central Excise and Service Tax, Patna on the grounds inter alia that initiation of recovery proceeding is not justified. 3. The Commissioner (Appeals) however held that the fact non-service of the order in original could not be proved to the contrary by the department but at the same time the Commissioner held that since attested copy was served under letter dated 19.06.2017 an appeal could be filed against such order. 4. It is further stated that during pendency of the appeal before the Commissioner, the petitioner received a communication that the notice dated April, 2018 issued under Section 142(1)(c)(ii) of the Customs Act has been cancelled, but vide impugned Annexure-12 to the writ application, the Commissioner (Appeals) concluded that the appellant has taken an effort only to nullify their failure to file their appeal within the stipulated period and has chosen to file the appeal against the recovery proceedings initiated against them. The Commissioner (App
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ment of Central Excise) would submit that in view of the categorical finding recorded by the Commissioner as contained in Annexure- 12 to the writ application, the petitioner, if aggrieved by the order of the Commissioner (appeals) could have availed the statutory remedy before the Central Excise and Service Tax Appellate Tribunal (in short the CESTAT ). It is submitted that the petitioner has admittedly not preferred any appeal against the order dated 19.03.2014 despite that the petitioner was served with the attested copy of the order dated 19.03.2014. The petitioner has not denied that he was served with the attested copy of the order which was appealable in nature. 6. Having heard learned counsel for the parties and upon perusal of the records, we find that under Section 35H of the Central Excise Act an appeal is provided against the assessment order within a period of 60 days from the date of service of the order. 7. The contention of the petitioner is that the said section empowe
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