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2022 (1) TMI 761 - HC - Central ExciseCondonation of delay in filing appeal before the Commissioner (appeals) - Levy of excise duty - manufacture of concrete mix at project site for the purpose of construction - applicability of N/N. 4/1997-CE, dated 1.3.1997 - Applicability of similar Notification No.12/2012-CE, dated 17.3.2012 to the subject tax period - applicability of CBIC Circular bearing No.368/1/98, dated 6.1.1998 - HELD THAT:- It is not in dispute that the order in original was passed by the adjudicating authority on 14.6.2019 and the writ petition was filed by the appellants before this Court in the month of September 2020. The statute prescribes the limitation period of 60 days with the next 30 days as per the proviso i.e., totally 90 days in filing the appeal before the Commissioner of Central Excise (Appeals) against the order in original under Section 35 of the Act. The appellants having not availed the said statutory remedy, challenged the order in original impugned contending that they have manufactured the concrete mix at the project site which is exempt under Circular dated 6.1.1998 and no RMC was manufactured. It is true that the appellants have not availed the alternative remedy of statutory appeal available under the Act and have filed the writ petition challenging the order in original, but the Writ Court not merely dismissed the writ petition as not maintainable but further proceeded to decide the matter on the merits of the case, thereby concluded that the concrete mix manufactured by the appellants at the project site classified by the adjudicating authority as RMC is justifiable. It would be appropriate in the interest of justice and equity to permit the appellants to prefer an appeal before the first appellate authority i.e., Commissioner of Central Excise (Appeals) to consider the matter on merits without going into the issue of limitation subject to imposing costs and the petitioner depositing the amount as required, for preferring an appeal - In the usual course if the assessee knocks the doors of the Writ Court without exhausting the alternative remedy of appeal available under the Act, no exception can be found with the Writ Court in rejecting the writ petition as not maintainable, but having regard to the peculiar facts and circumstances of the case, as in the present case when the appellants have approached the Writ Court with an alternative relief of seeking permission to file an appeal before the appellate authority, any finding recorded on the merits of the case which indeed relates to facts warrants interference. It is clear that in the absence of power vested with the appellate authority to condone the delay, in the peculiar facts and circumstances of the case, the ends of the justice would be met in permitting the appellants to file an appeal instead of adjudicating the matter on merits subject to conditions imposed - appeal allowed in part.
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