2009 (5) TMI 118 - HC - Central Excise

Petition rejected for want of prosecution - restoration of the main petition seeked - petitioner challenged orders dated 23-12-1998 and 7-4-1999 made by Commissioner fixing the Annual Production Capacity for the first time by way of this petition - Held that - The submission that once the Apex Court declared that galleries could not be included for the purpose of determining the Annual Production Capacity and hence on that count the duty was levied without authority of law also does not merit acceptance for the simple reason that every assessee is required to challenge in his own case an adverse decision within prescribed and normal period of limitation. Even if one proceeds on the footing that the said orders made by Commissioner determining Annual Production Capacity in December 1998 and April 1999 were without granting an opportunity of hearing to the petitioner the petitioner ought to have challenged the same as held by the Tribunal at the relevant point of time. The same having not been done by the petitioner in the guise of challenging order dated 4-1-2006 the petitioner cannot seek the same relief as prayed for in prayer clause 9(A) of the petition. None of the grounds pleaded or urged at the time of hearing does the petition merit acceptance. The petition is accordingly rejected after restoring the same to file. The main petition after being restored to file stands rejected

Summary

Issues:
Challenging orders related to Annual Production Capacity fixation, delay in challenging orders, refund claim rejection, challenge to Adjudicating Authority's order, condonation of delay, challenge to Tribunal's order, challenge to Adjudicating Authority's order, challenge to Apex Court judgment, failure to challenge orders at appropriate time.

Analysis:
1. The petitioner challenged orders related to Annual Production Capacity fixation in a petition filed belatedly. The petitioner cited previous court decisions to support the delayed challenge, arguing that the fixation without granting a hearing was unlawful.

2. The petitioner sought to challenge the Adjudicating Authority's order dated 4-1-2006. They requested the High Court to condone the delay in filing an appeal before the Commissioner (Appeals), emphasizing the liberal interpretation of Section 14 of the Limitation Act.

3. The petitioner contended that the duty could not be levied on certain portions based on a Supreme Court judgment. The petitioner argued that even if the Tribunal's decision barred a direct refund claim, they could challenge the fixation of Annual Production Capacity in the present proceedings.

4. The respondent authorities argued that the Tribunal's final order prevented independent challenges to subsequent orders. They questioned why the Tribunal's decision had not been challenged and emphasized the importance of challenging adverse decisions promptly.

5. The High Court noted that the petitioner had accepted the Tribunal's decision without challenge, and there was no explanation for this omission. The court rejected the petition on these grounds, stating that the petitioner failed to challenge the adverse order effectively.

6. The court emphasized that the petitioner should have challenged adverse decisions within the prescribed time limits. The failure to challenge the fixation of Annual Production Capacity earlier prevented the petitioner from seeking relief in the present proceedings.

7. Considering all grounds and circumstances, the court found no merit in the petition and rejected it. The court restored the petition to file and discharged the notice with no order on costs, concluding the judgment.