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2019 (3) TMI 1825 - HC - Central ExciseJurisdiction - the case made out by the appellant assessee is that the adjudicating authority acted in error of jurisdiction in passing the order impugned - HELD THAT:- Since the appellant in the present case adopted the scheme under Rule 6(3)(c) of the Rules of 2004 to which the first Explanation to the sub-rule was also attracted, there was an option available to the appellant to either make over the amount that was realised by the appellant by way of excise duty from the appellant’s purchasers or to debit the CENVAT credit obtained by the appellant by the equivalent amount. There is no dispute that the appellant did, in fact, debit the CENVAT credit by the equivalent amount. If the CENVAT credit can be seen as money in the hands of the assessee in some other form, the debiting of the CENVAT credit by an equivalent amount, tantamounts to such amount having made over to the excise authorities or refunded to the excise authorities or the like. It is evident that the adjudicating authority did not refer to the first Explanation to Rule 6(3) of the said Rules of 2004 while passing the relevant order. In such circumstances, the adjudicating authority committed an error of jurisdiction in failing to appreciate the extent to which the dictum in Unison Metals Limited bound the adjudicating authority - Since such jurisdictional error was amenable to correction within the scope of judicial review exercised in the extraordinary jurisdiction under Article 226 of the Constitution, there was no impediment to receiving the petition or adjudicating on such aspect notwithstanding the appeal from the order of the adjudicating authority not being entertained on the ground of limitation or the resultant appeal being withdrawn since the Commissioner (Appeals) had only acted within the bounds of his authority. The order of the adjudicating authority of May 7, 2008 is set aside and it is recorded that the excise claim stands satisfied upon the CENVAT credit of equivalent amount having been debited from the CENVAT credit account of the appellant - Appeal allowed.
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