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2015 (10) TMI 1297 - HC - Central ExciseMaintainability of writ petition - condonation of delay in filing an appeal before Commissioner (Appeals) - directly challenging the order-in-original passed by the adjudicating authority - Denial of CENVAT Credit - Bar of limitation - Held that:- Tribunal has dismissed the appeal preferred by the petitioner against the order passed by the Commissioner (Appeals) by concurring with the view expressed by the Commissioner (Appeals). Insofar as condonation of the delay caused in filing the appeal by the Commissioner (Appeals) is concerned, the Full Bench of this court had concluded the issue by holding that there is no power to condone the delay beyond a period of thirty days as provided by the proviso to section 35 of the Act nor can the appeal be filed beyond a period of ninety days. Under the circumstances, the impugned orders passed by the Commissioner (Appeals) and the Tribunal do not suffer from any legal infirmity warranting interference. Perusal of the impugned order-in-original reveals that the petitioner had raised a contention as regards the storage tanks being capital goods and the M.S. Angles, Channels, H.R. Plates, bars etc. being used for repair and maintenance thereof and alternatively had submitted that in case H.R. Plates, Angles, Channels and bars are not considered to be capital goods, cenvat credit is admissible as input credit instead of capital goods credit and the adjudicating authority has, after considering the said submission on merits, turned down the contention of the petitioner. Under the circumstances, this is not a case where the impugned order suffers from the infirmity of having been passed in breach of the principles of natural justice nor has the adjudicating authority acted in excess of its jurisdiction nor is the order without jurisdiction. It is also not the case of the petitioner that the adjudicating authority has acted in flagrant disregard of law or rules of procedure. Under the circumstances, the present case does not fall within any of the exceptional circumstances envisaged by the Full Bench in the order passed in this very petition so as to warrant interference in exercise of powers under Article 226 of the Constitution. - Decided against assessee.
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