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2015 (10) TMI 1297 - GUJARAT HIGH COURT

2015 (10) TMI 1297 - GUJARAT HIGH COURT - TMI - Maintainability 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 condona .....

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ce.

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 .....

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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. - SPECIAL CIVIL APPLICATION NO.18542 of 2014 - Dated:- 8-10-2015 - MS. HARSHA DEVANI AND MR. A.G.URAIZEE, JJ Mr Dhaval Shah, Advocate : For the Petitioner Mr RJ Oza, Advocate : For the Respondent ORDER PER : HON .....

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tice dated 25th April, 2012 came to be issued against the petitioner to show cause as to why cenvat credit wrongly availed by them on items viz. M.S. Angles, Channels, H.R. Plates, bars etc. as capital goods total amounting to ₹ 18,85,399/- during the period from February, 2008 to April, 2011 as detailed therein, should not be disallowed and recovered from them under rule 14 of the Cenvat Credit Rules, 2004 read with the proviso to erstwhile section 11A(1) of the Central Excise Act, 1944 ( .....

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condonation application and appeal was filed by the petitioner under section 35 of the Act on 29th August, 2013 against the Order-in-Original dated 30th April, 2013, which was received by them on 3rd May, 2013 and hence, there was a delay of 118 days which is beyond the limit of 30 days for which the Commissioner (Appeals) is statutorily empowered to condone the delay under section 35 of the Act. He, accordingly, dismissed the appeal as being time barred. Against the order passed by the Commiss .....

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r decision by a Larger Bench of this court:- (1.) Whether the period of limitation provided of 60 days, for filing an appeal under Section 35 of the Central Excise Act, 1944, could be extended only upto 30 days as provided by the proviso or the delay beyond the period of 90 days could also be condoned in filing an appeal (2.) Where a statutory remedy or appeal is provided under Section 35 of the Central Excise Act, 1944 and the delay cannot be condoned under Section 35 beyond the period of 90 da .....

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rder dated 13th March, 2015 whereby the questions were answered as follows:- 31. We may now proceed to answer the question - (1) Question No.1 is answered in negative by observing that the limitation provided under section 35 of the Act cannot be condoned in filing the appeal beyond the period of 30 days as provided by the proviso nor the appeal can be filed beyond the period of 90 days. (2) The second question is answered in negative to the extent that the petition under Article 226 of the Cons .....

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n excess of the jurisdiction and by overstepping or crossing the limits of jurisdiction, or A.3) Has acted in flagrant disregard to law or rules or procedure or acted in violation of principles of natural justice where no procedure is specified. B) Resultantly, there is failure of justice or it has resulted into gross injustice. We may also sum up by saying that the power is there even in aforesaid circumstances, but the exercise is discretionary which will be governed solely by the dictates of .....

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re is no power to condone the delay beyond a period of ninety days, the Full Bench has also held that in cases where there is failure of justice or an order has resulted into gross injustice, it is always permissible for the petitioner to invoke the jurisdiction under Article 226 of the Constitution of India. Referring to the facts of the present case, it was submitted that the order-in-original passed by the adjudicating authority suffers from various serious infirmities in not having properly .....

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rnative prayer that in case it is held that the petitioner is not entitled to avail of cenvat credit on the aforesaid articles as capital goods, cenvat credit is admissible as input credit instead of capital goods credit. It was submitted that the adjudicating authority has turned down the plea of the petitioner by holding that storage tank is not movable goods and has denied the petitioner the benefit of input credit. Reliance was placed upon the decision of the Karnataka High Court in the case .....

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immovable property embedded to earth and capital goods. It was submitted that the above decisions would be squarely applicable to the facts of the present case and hence, gross injustice would be caused to the petitioner who is otherwise entitled to the benefit of input credit in respect of the above referred articles. It was, accordingly, urged that the present case falls within the exceptional circumstances contemplated by the Full Bench in the above decision, and the petitioner is, therefore .....

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thority has passed the order without jurisdiction or by assuming jurisdiction which did not exist, or that the adjudicating authority had exercised power in excess of its jurisdiction and by overstepping or crossing the limits of jurisdiction or that it had acted in flagrant disregard to rules or procedure or acted in violation of principles of natural justice where no procedure is specified. It was submitted that since the present case does not fall within any of the aforesaid exceptional circu .....

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escribed in section 35 of the Act. The 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 t .....

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