Akil Kureshi, J. (Oral)

1. Heard learned advocates for the parties for final disposal of the petition.

2. Brief facts are as under :

3. A show cause notice was issued to the petitioner on 26th June 2005 why Central Excise duty of Rs. 1,88,488/- should not be demanded on unutilized acrylic yarn indigenously procured, and a further duty of Rs. 2,20,756/- be not demanded on yarn sent to an exporter for which no warehousing certificates were produced. After one round of remand, the adjudicating authority by an order dated 24th August, 2007 confirmed the duty demand with interest and penalties. Against such order, statutory period of limitation prescribed was 60 days for filing appeal. Beyond such period, the Appellate Commissioner had the power to condone delay of 30 days. Admittedly, beyond this delay of period of 90 days, the Appellate Commissioner could not entertain any appeal. Under bona fide mistaken belief that such appeal could be presented on the date preceding the completion of period of 90 days, the petitioner filed appeal before the Appellate Commissioner admittedly on the 91st day of the receipt of the order-in-original. Such appeal was dismissed by the Appellate Commissioner by an order dated 28th September 2011 only on the ground of delay which he could not condone. Against such order, the petitioner preferred appeal before the Tribunal. The Tribunal by an order dated 1st June 2012 dismissed the appeal confirming the view of the Commissioner. The petitioner preferred further appeal before the High Court but withdrew the same for filing a writ petition on 31st July 2014.

4. Learned counsel Shri. Dhaval Shah for the petitioner submitted that the adjudicating authority had passed the said order without participation of the petitioner. The petitioner has been contending that no notice of hearing was served on the petitioner. The petitioner, therefore, could not remain present personally or through authorised representative. The entire proceedings, therefore, went ex parte.

5. The case rests on peculiar facts. Admittedly, there has been a delay in filing the appeal before the Appellate Commissioner. Such delay was beyond his power to condone. Statutorily it is recognised that the Commissioner could not have condoned delay beyond 30 days. However, the petitioner missed the deadline by one day, perhaps on a bona fide belief that such appeal could still be considered within the extendable period if it is presented not on the 90th day, but immediately preceding the 90th day. Be that as it may, the petitioner’s ground of no opportunity by the adjudicating authority also requires consideration. This Court has in the past taken a view that even though in cases where the Commissioner is powerless to condone the delay beyond the prescribed period, the High Court is not devoid of its jurisdiction under Article 226 of the Constitution of India in rare exceptional cases to examine the validity and legality of the order of the adjudicating authority. Reference to one such decision can be made in the case of Lathia Industrial Supplies Company Private Limited v. The Commissioner (Appeal-I) dated 20th March 2013 [2014 (307) E.L.T. 460 (Guj.)], in which the following observations were made :

"5. Having thus heard learned counsel for the parties, in facts of the case, we are inclined to put the matter back at the stage of adjudicating authority. We notice that there has been some delay in the petitioners’ approaching the Appellate Commissioner and obviously the Commissioner could not have ignored the statutory limit beyond which he could have condoned the delay. Nevertheless, as held by the Division Bench of this Court in case of D.R. Industries and Anr. v. Union of India and Ors. reported in 2008 (3) GLH 662, such a situation would not prevent the High Court in appropriate case examine the validity of the order-in-original itself. This is however, hedged by two requirements. On that delay is otherwise well explained and the Court finds that non-consideration of the issues would result into gross injustice. The Court observed as under :

"19. As regards the contention that there may be extraordinary cases where assessees may not be in a position to challenge the order of the adjudicating authority before the Commissioner (Appeals) within a period of 90 days from the date of communication of the order, we are of the view that in such extraordinary cases where an assessee can show extraordinary circumstances explaining the delay and also gross injustice done by the adjudicating authority, the assessee may invoke the writ jurisdiction of this Court. Hence, in cases where the assessees have suffered gross injustice and they could not file appeals before the Commissioner (Appeals) within a period of 90 days from the date of communication of the order-in-original on account of circumstances beyond their control, such assessees can invoke the powers of this Court under Article 226 of the Constitution but, of course, not as a matter of right."

6. Coming back to the present case when it is pointed out that the very base order was passed without proper notice o

f hearing to the petitioner, such order is set aside. Proceedings are traced back to the adjudicating authority for fresh consideration and disposal in accordance with law. The petitioner shall appear before the said authority on 15th January 2015 for which no statutory notice shall have to be issued to the petitioner. We clarify that this fixing date of hearing is only for the purpose of avoiding the requirement of service of notice to the petitioner, and it would be entirely open for the adjudicating authority to fix the date according to its convenience and schedule.