TMI Blog2013 (8) TMI 951X X X X Extracts X X X X X X X X Extracts X X X X ..... e yarn, fabrics, sacks, bags and various jute products. The said mill was run from time to time on conversion basis by different companies at different point of time. It was submitted by Mr. Khaitan that during the period of March 1994 to February 1997 the said mill running on conversion basis by some other companies, had a stitching unit for manufacture of sacks and bags of jute out of duty paid woven fabrics of jute and jute yarn and the same unit is adjacent to their main factory premises. The practice generally followed was that they removed duty paid jute woven fabrics and jute yarn to their stitching unit for manufacture of sacks, and bags of jute and after manufacturing they removed the without payment of central excise duty as per Notification No.65/87-CE dated March 1, 1987 which was valid till February 28,1994. After deletion of the said Notification with effect from March 1,1994 Rule 56A procedure of the Central Excise Rules, 1994 was extended to the jute products under Notification No. 7/94-CE dated March 1, 1994 and after deletion of the same with effect from May 20, 1994, Notification N.`121/94-CE dated August 11, 1994 was issued extending the benefit of duty exemp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed March 1, 1994 and after deletion of the same with effect from May 24, 1994 Notification No.121/94-CE dated August 11, 1994 was issued extending the duty for captive consumption in the manufacture of finished goods. It was also stated in the reply that during February 1995 to February 1997 they paid duty and rightly claimed duty exemption on the intermediate jute products viz., woven fabrics of jute, jute twins and jute yarn under Notification No. 121/94-CE dated August 11, 1994. Hearing was fixed on August 29, 2005 when the authorised representative of the mill attended the hearing and made submissions on merit. On November 30, 2005 by the impugned order under challenge the concerned respondent decided that (i) the said mill themselves admitted that exemption under the Notifications viz., 121/94-CE dated August 11, 1994 were on inputs whereas the demands are on final products, (ii) the stitching unit of the mill was outside the factory premises and accordingly the benefit of the Notification viz., 121/94-CE dated August 11, 1994 was not available to them. The Joint Commissioner confirmed the demand for duty of ₹ 40,32,194/- plus education cess ₹ 3,21,399/- and impose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the same was barred by limitation and the delay was beyond the period condonable by him. Petitioners received the order dated March 10, 2008 on March 18, 2008 and they sought for legal advice. Ultimately, petitioners were advised that its appeal before the Commissioner (Appeals) against the purported order dated November 30, 2005 was filed one year and one and half months after expiry of prescribed period of sixty days for preferring appeal and the Commissioner have no power to condone delay beyond the period of thirty days. Petitioners were advised that some of the Benches of Tribunal have taken view that Tribunal could adjudicate upon merits of the matter even in case where appeals to be dismissed by Commissioner for having been filed beyond the statutory condonable period. However, there is a larger Bench decision which upheld that on the ground of delay alone the appeal could be rejected without entering into any examination of the merits of the case. Petitioners were advised that it could not expect any relief before the Tribunal or in any statutory appeal and only remedy available to it was to file an application, under Article 226 of the Constitution of India, challengi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uent decision of the Hon ble Apex Court [Singh Enterprises versus Commissioner of Central Excise, Jamshedpur and Ors.], reported in (2008)3 SCC 70, it was held that the first proviso to Section 35 make the position clear that the appeal has to be preferred within three months from the date of communication to the party of the decision or order. It is clear from the Section that the Appeal has to be filed within sixty days but in terms of the proviso further thirty days time can be granted by the appellate authority to entertain the appeal. The language used makes the position clear that the legislature intended the appellate authority to entertain the appeal by condoning delay only upto thirty days after expiry of sixty days, which is normal period for preferring appeal. Therefore, there is complete exclusion of Section 5 of the Limitation Act. Mr. Khaitan Submitted that in view of this decision the order passed by the Appellate Authority refusing to entertain the appeal, cannot be questioned. Therefore, he is not questioning the order of the appellate authority. However, so far the order of Joint Commissioner of Central Exercise concerned, Mr. Khaitan submitted that the order i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re submitted for approval. Since after making the application on 29th December 1994 the mill waiting for a decision but unfortunately till date there is no final decision arrived at by the concerned Superintendent on that issue. There is no refusal nor the acceptance. Mr. Khaitan submits as per the provisions under Rule 174(9), in case no response is received against the said application of the jute mill within 30 days from the date of submission, it would be presumed that the proposal has been approved by the concerned authority. Mr. Khaitan submitted that there is no dispute as regards the fact that the stitching unit is a part of the factory and situated inside the factory premises. There may be a public road passed through the factory premises and at one side of the road factory is situated and the stitching unit is situated on the other side, that cannot be a ground for imposition of excise duty treating the said unit as separate. Mr. Khaitan submitted that the concerned assessing officer while regarding that the said application is pending, did not wait for the decision of the concerned authority rather he has decided matter taking the fact that the mill premises and the stit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Joint Commissioner since the writ court is not an appellate forum nor it can exercise the power of the appellate authority. Learned counsel also submitted that he supported by a judgement reported in 2013 (292) E.L.T. 16 (Bom.) and in that case under similar circumstances the division bench of Bombay High Court refused to entertain the writ petition against the order in original passed by the Joint Commissioner, Central Excise, Pune. Learned counsel submitted for the sake of argument even if it is accepted that the order of the Joint Commissioner, Central Excise did not merge with the appellate order, in view of rejection of appeal as time barred, the order of the Joint Municipal Commissioner could not be challenged after such a long time without proper explanation and/or sufficient explanation. According to the learned counsel the writ petitioner do not have any legal right to file the writ petition, therefore, the writ petition should not be entertained by this Court. He also cited the judgement reported in (1989) 2 SCC page 504, wherein the Hon ble Apex Court held that the judicial review under Article 226 cannot be afforded into an appeal. Judicial review is directed, not a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction, in the facts and circumstances of this case when appeal preferred by the petitions was dismissed on the limitation ground. In this regard it would be relevant and necessary to refer the five Judges Bench direction of the Hon ble Apex Court [State of UP versus Mohammed Nooh](supra) wherein it was held that a litigant who has lost his right of appeal or has failed to perfect an appeal by no fault of his own may in proper case obtain a review by certiorari. The relevant portion of this Apex Court judgement is quoted hereunder: There can, I think, be no doubt that Court can refuse to issue a certiorari if the petitioner has other remedies equally convenient and effective. But it appears to me that there can be cases where the Court can and should issue a certiorari even where such alternative remedies are available. Where a Court or tribunal, which is called upon to exercise judicial or quasi-judicial functions discards all rules or natural justice and arrives at a decision contrary to all accepted principle of justice then it appears to me that the Court can and must interfere. It has also been held that a litigant who has lost his right of appeal or has failed to per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... J.: This is true as a fact, but it puts the prosecution in no better position, for if the Magistrate had no power to give himself jurisdiction by finding that there had been a first offence where there had been none, the justices could not give it to him. (11) On the authorities referred to above it appears to us that there may conceivably be cases and the instant case is in point-where the error, irregularity or illegality touching jurisdiction or procedure committed by an inferior court or tribunal of first instance is so patent loudly obtrusive that it leaves on its decision and indelible stamp of infirmity or vice which cannot be obliterated or cured on appeal or revision. If an inferior Court or tribunal of first instance acts wholly without jurisdiction or patently in excess of jurisdiction or manifestly conducts the proceedings before it in a manner which is contrary to the rules of natural justice and all accepted rules of procedure and which offends the superior court s sense of fair play the superior Court may, we think, quite properly exercise its power to issue the prerogative writ of certiorari to correct the error of the Court or tribunal of first instance, ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
