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2020 ] ASSTT. COMMR. (CT), LTU v. GLAXO SMITH KLINE CONSUMER HEALTH CARE 323
cession given by the Counsel appearing for the Revenue as noted in paragraph
2(1) of the order, which reads thus :-
“2. The High Court has dismissed the writ petition filed by the petitioner
on the ground that there is an adequate alternative remedy by way of an
appeal under Section 35 of the Central Excise Act. Learned Counsel for the
petitioner submits that the petitioner will face certain difficulties in pursu-
ing this remedy :
(1) This remedy may not be any longer available to it because the
appeal has to be filed within a period of three months from the date
of the assessment order and delay can be condoned only to the extent
of three more months by the Collector under Section 35 of the Act. It
is pointed out that the petitioner did not file an appeal because the
Collector (Appeals) at Madras had taken a view in a similar matter
that an appeal was not maintainable. That apart, the petitioner in
view of the huge demand involved filed a writ petition and so did not
file an appeal. In the circumstances of the case, we are of the opinion
that the ends of justice will be met if we permit the petitioner to file a
belated appeal within one month from today with an application for
condonation of delay, whereon the appeal may be entertained.
Learned Counsel for the Revenue has stated before us that the Revenue will
not object to the entertainment of the appeal on the ground that it is barred
by time. In view of this direction and concession, the petitioner will have an
effective alternative remedy by way of an appeal.
(emphasis supplied)
In that case, it appears that the writ petition was filed within statutory period
and legal remedy was being pursued in good faith by the assessee (appellant).
18. Suffice it to observe that this decision is on the facts of that case and
cannot be cited as a precedent in support of an argument that the High Court is
free to entertain the writ petition assailing the assessment order even if filed be-
yond the statutory period of maximum 60 days in filing appeal. The remedy of
appeal is creature of statute. If the appeal is presented by the assessee beyond the
extended statutory limitation period of 60 days in terms of Section 31 of the 2005
Act and is, therefore, not entertained, it is incomprehensible as to how it would
become a case of violation of fundamental right, much less statutory or legal
right as such.
19. Arguendo, reverting to the factual matrix of the present case, it is no-
ticed that the respondent had asserted that it was not aware about the passing of
assessment order dated 21-6-2017 although it is admitted that the same was
served on the authorised representative of the respondent on 22-6-2017. The date
on which the respondent became aware about the order is not expressly stated
either in the application for condonation of delay filed before the appellate au-
thority, the affidavit filed in support of the said application or for that matter, in
the memo of writ petition. On the other hand, it is seen that the amount equiva-
lent to 12.5% of the tax amount came to be deposited on 12-9-2017 for and on be-
half of respondent, without filing an appeal and without any demur - after the
expiry of statutory period of maximum 60 days, prescribed under Section 31 of
the 2005 Act. Not only that, the respondent filed a formal application under Rule
60 of the 2005 Rules on 8-5-2018 and pursued the same in appeal, which was re-
jected on 17-8-2018. Furthermore, the appeal in question against the assessment
order came to be filed only on 24-9-2018 without disclosing the date on which the

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