TMI Blog2014 (4) TMI 1026X X X X Extracts X X X X X X X X Extracts X X X X ..... 2013 - Rajive Bhalla and Dr. Bharat Bhushan Parsoon, JJ. Shri Ravinder Narain, Sr. Advocate with Jagmohan Bansal, Advocate, for the Petitioner. Shri Kamal Sehgal, Advocate, for the Respondent. ORDER The petitioner prays for issuance of a writ in the nature of certiorari quashing the proviso to Section 35(1) of the Central Excise Act, 1944 (hereinafter referred to as the Act ), show cause notice No. CE-20/demand/4/JCB/R-VII/04/4730, dated 3-3-2005 issued to the petitioner for recovery of Rs. 34,03,468/-; order dated 25-1-2006, whereby demand of duty and penalty have been imposed and order dated 8-12-2008, whereby the petitioner s appeal has been dismissed. 2. Counsel for the petitioner submits that the petitioner was served 13 show cause notices relating to demand of duty on FOC Kits for various periods. The assessment orders pertaining to periods 1-4-2002 to 31-3-2003 and 1-4-2003 to 31-1-2004 were remanded by the CESTAT, on 28-10-2009 [2010 (251) E.L.T. 433 (Tri.-Del.)], to the Adjudicating Authority, for adjudication, afresh. After remand, the Additional Commissioner has dropped proceedings not only with respect to these show cause notices, but also with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there is no power with the Appellate Authority to condone delay beyond the period prescribed by the Act. The Hon ble Supreme Court has held in M/s. Shanti Alloys [2010 (255) E.L.T. A48 (S.C.)] that the period of limitation, prescribed by the Act, cannot be varied. It is further submitted that the Order-in-Original, was delivered to the petitioner through speed post on 27-1-2006, by speed post booking slip No. 792069757, duly received by the petitioner, on 28-1-2006. The petitioner has made false averments, in the petition, as well as in letters that a copy of the order was not received till a photostat copy was supplied on 9-7-2007. As the petitioner had not shown sufficient cause for delay of one year and seven months in filing the appeal, the appeal was rightly dismissed. The writ petition should be dismissed as power under Article 226/227 of the Constitution of India cannot be exercised to override the period of limitation prescribed by the Act. Counsel for the respondents places reliance on the following judgments :- Singh Enterprises v. Commissioner of C. Ex., Jamshedpur, 2008 (221) E.L.T. 163 (S.C.); Commissioner of Customs Central Excise v. Hongo India (P) Ltd. - 2009 (236 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anner the invoices are prepared, the fact remains that from 1-3-2002, the appellants have supplied spares along with excavator and the overall price remained the same. To say that spares are supplied free of cost is a misnomer, as the spares are not available for free distribution for any person who does not buy the Hydraulic excavator. From the date when the spare parts are supplied, there is a reduction in the price of the excavator loaders. Therefore we are of the considered opinion that the excavator loader along with standard fitments and accessories would be assessed separately and the duty liability or the Cenvat credit on the kits should be determined separately. In other words, the total value requires to be apportioned between the value of excavator and value of spare parts/extra spare parts. This exercise has not been done by the original authority. To enable the same, we set aside the orders of the lower authorities and remand the matter to the original authority to consider the matter afresh and to determine the value of excavator and to determine the duty liability/Cenvat credit to be reversed on the excavator inputs and spares/extra spares supplied as per Rules 3 4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iate duty of Central Excise has been paid on the FOC Kits, the matter becomes revenue neutral and no further duty, Cenvat credit liability arises on the part of the noticee (petitioner). 7. Admittedly, notices for the period 1-2-2008 to 31-12-2008, 1-1-2009 to 31-12-2009, 1-1-2010 to 30-11-2010 have also been dropped by holding that duty is not payable on FOC Kits sold along with JCBs machines. However, proceedings arising from similar show cause notices pertaining to periods ranging from 1-7-2004 to 31-12-2004, 1-1-2005 to 31-3-2005, 1-4-2005 to 30-6-2005, 1-7-2005 to 28-2-2006, 1-3-2006 to 31-8-2006, 1-9-2006 to 28-2-2007 and 1-3-2007 to 31-1-2008 are pending in appeals before the CESTAT. 8. The dispute, in the present case, relates to the same demand of duty on FOC kits sold along with JCBs machines but with respect to show cause notice dated 3-3-2005, relating to the period 1-2-2004 to 30-6-2004. The petitioner filed a reply to the show cause notice. The Assessing Authority, vide order dated 25-1-2006, confirmed a demand of Rs. 34,03,468/- and imposed a penalty of Rs. 44,03,468/-. The petitioner received a letter under Section 11AB of the Act, dated 21-9-2006, demanding d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tice, the assessment order and the show cause notice relating to the period 1-2-2004 to 30-6-2004 can be quashed in exercise of power under Article 226 of the Constitution. 12. Article 226 of the Constitution, confers power to issue writs and orders as may be necessary subject, however, to any prohibition enacted by Article 226 of the Constitution or judicial precedents. A Court, may, in the exercise of this power, issue a writ or order, even where the order is appealable or the appeal has been dismissed as barred by time, provided the impugned order or proceedings have perpetuated injustice or would lead to a miscarriage of justice. We draw support for our conclusion from a judgment of the Gujarat High Court in D.R. Industries Limited v. Union of India case (supra), where after rejecting the prayer for condonation of delay beyond the period of limitation prescribed under the Act, it was held as follows :- As regards the contention that there may be extra-ordinary 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nied that no further appeal has been filed against the order of CESTAT or the order passed by the adjudicating authority, dropping the notices. 17. The dropping of similar show cause notices relating to similar demands for duty has led to an anomalous situation. The petitioner would be liable to pay duty and penalty with respect to the impugned notice but with respect to similar show cause notices, would not be liable to pay duty and penalty. The dropping of similar show cause notices, by the Adjudicating Authority, in our considered opinion, is sufficient to grant relief to the petitioner and direct adjudication of the show cause notice, afresh. 18. In view of what has been recorded hereinabove, the writ petition is allowed; the impugned assessment order dated 25-1-2006 (Annexure P-4), order dated 8-12-2008 (Annexure P-11) passed by the Commissioner of Central Excise (Appeals), are set aside and the matter is remitted to the Adjudicating Authority to decide show cause notice dated 3-3-2005 (Annexure P-3), afresh and in accordance with law. The respondents would be at liberty to point out any distinguishing feature between the case in hand and the cases already decided by the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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