M/S. Arihant Telecommunications ... vs The Union Of India And Others
2016 Latest Caselaw 6735 Bom

                                                                            17wp1259.odt
                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                             BENCH AT AURANGABAD
                             WRIT PETITION NO. 1259 OF 2015




                                                                              
            M/s Arihan Telecommunications, ...                   Petitioner
            Through its Proprietor,




                                                      
            shri prakash  Jasraj Bothara
            Age 65 years, occu: Business,
            R/o Madhav Colony, Plot No.1,
            Natraj Cinema Road, Dhule




                                                     
            VERSUS

    1.      The Unionof India
            through its Secretary,




                                               
            Central Excise and Customs 
            Department, New Delhi

    2.
                                  
            The Commissioner, Central 
            Excise and Customs, 
            Gadkari Chowk, Nashik, 
                                 
            Tq. and Dist. Nashik

    3.      The Deputy Commissioner,                   ...       Respondents
            Central Excise, Customs, 
      

            Service Tax, Jalgaon, 
            Taluka and Dist. Jalgaon
   



    Advocate for Petitioner : Mr. Choudhari N. L.
    Advocate for Respondents 2 and 3 : Mr. D. S. Ladda





                                        CORAM   :  S. V. GANGAPURWALA & 
                                                    K. L. WADANE, JJ.
                                         DATE   :   28th November, 2016

    JUDGMENT (Per S. V. Gangapurwala, J):     

1. We have heard Mr. Choudhari, the learned counsel

for the petitioner and Mr. Ladda, the learned counsel

for the respondents.

2. Rule. Rule made returnable forthwith. With

consent of parties, the petition is taken up for final

17wp1259.odt disposal.

3. Grievance of the petitioner is that the appeal

filed by the present petitioner before the Commissioner

(Appeals) is dismissed on the ground that the same is

not filed within limitation and the Commissioner has no

power to condone the delay. Mr. Ladda, the learned

counsel relies on the judgment of the Apex Court in

the case of Mohan and another Vs. State of Maharashtra

and others, reported in AIR 2007 SC 2625 to submit that

the subsequent corrigendum would not extend the period

of limitation and the original declaration is only

relevant for computing the period of limitation. The

learned counsel also relies on the judgment of the

Apex Court in the case of Bharti Cellular Ltd. Vs.

Commissioner of Central Excise, Delhi, reported in

2006(3) STR 423, Escotal Mobile Communications Ltd.

Vs. Union of India, reported in 2004(177) ELT 99, and

AIRcell Digilink India Ltd. Vs. Commissioner of Central

Excise, Jaipur, reported in 2004 (1973) ELT 31 and

submits that the Commissioner (Appeals) has no power to

condone the delay of more than 30 days.

4. In the present case, the order in original was

passed on 31.10.2012 and the appeal was filed on

27.02.2013. It would be seen that after the order was

17wp1259.odt passed on 31.10.2012, there was some mistake in the

order was noticed. Corrigendum was issued on 31.12.2012

for correcting the amount of penalty. Naturally the

appeal period will have to be computed from the

corrected date of the order as that is the order that

would be executable. The said aspect is also considered

by the Division Bench of Zarkhand High Court in the

case of Fast Track Tour and Travels Vs. Union of India,

reported in 2013 (295) ELT 36(Jhar), wherein it is held

that the limitation would be counted from the date of

corrigendum.

5. There cannot be any dispute with the proposition

that the Commissioner (Apples) does not have any power

to condone the delay beyond 30 days. However, if the

Corrigendum is considered, then naturally the appeal

would be within limitation.

6. Considering the above, the impugned order is

quashed and set aside. The commissioner (Appeals) shall

consider the appeal filed by the petitioner on merits.

7. Rule is made absolute in the above terms. No costs.

(K. L. WADANE, J.) (S. V. GANGAPURWALA, J. ) JPC