TMI Blog2019 (3) TMI 1825X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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the order of the adjudicating authority not being entertained on the ground of limitation or the resultant appeal being withdrawn since the Commissioner (Appeals) had only acted within the bounds of his authority.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. - A.P.O. No. 391 of 2017, G.A. No. 2872 of 2017 in W.P. No. 681 of 2014 - - - Dated:- 15-3-2019 - Sanjib Banerjee and Suvra Ghosh, JJ. Shri J.P. Khaitan, Senio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erty of any other forum. Qualitatively, the authority exercised under Article 226 of the Constitution is not akin to appellate authority. As long as it is demonstrated that the quasi-judicial order questioned in this jurisdiction is on account of the breach of the principles of natural justice or in the erroneous exercise of jurisdiction or the like, the writ petition can be entertained, though a constitutional Court always has the discretion to not grant any relief on other grounds which are required to be recorded. In the present case, it is evident that a jurisdictional error may have been committed by the adjudicating authority that the assessee did not get a chance to address on merits because of the delay on the assessee s part to move the appeal. 7. The matter pertains to Rule 6 of the CENVAT Credit Rules, 2004. Such Rule pertains to the obligation of the manufacturer to make a distinction in maintaining accounts relating to the use of inputs in taxable and exempted goods if inputs on which CENVAT credit has been availed of are used in the manufacture of both exempted goods and taxable goods. Broadly speaking, if the manufacturer avails of CENVAT credit in respect of inpu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amount, is NIL, whereas in the corresponding commercial invoice, specific amount against the Central Excise Duty @ 10% has been charged, wherefrom it is crystal clear that the assessee has realized Central Excise Duty @ 10% from its buyers against the clearance of exempted excisable goods, in question and they did not disclose the issue before the Central Excise Department as well. They at the same time, also retained such collection of Central Excise duty with them as they did not deposit the same to the credit of the Central Government. I find that for the manufacture of both dutiable and exempted goods assessee used common inputs and availed Cenvat Credit on the total inputs before manufacturing both the products. Hence in terms of the Cenvat Credit Rules, 2002, they were required debit @ 10% the already, availed Cenvat credit for the input utilized for the manufacture of exempted goods. Hence, the ratio of the Tribunal s decision since the 8% amount remain already paid to the revenue, and no amount is retained by the assessee, as cited by the assessee to defend themselves, in the case of Unison Metals Ltd. v. Commissioner of Central Excise, Ahmedabad-I., 2006 (2004) E.L.T. 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imited. 13. The Union opposes the appeal on the ground that the adjudicating authority did not commit any error, far less any jurisdictional error, since it interpreted the law as it stood at the relevant point of time. The Union submits that the adjudicating authority noticed the legal position as enunciated in Unison Metals Limited and interpreted it not to apply to the case of the appellant since the appellant had obtained a certain amount from the appellant s buyers on account of excise duty but had not deposited the amount realised by way of excise duty to the excise authorities. 14. It is clearly such position which was addressed at paragraph 8 of the judgment of the Larger Bench of the Tribunal in Unison Metals Limited. Though such judgment dealt with the 8% duty that was relevant at that point of time under Rule 57CC of the 1944 Rules, the legal principle enunciated was that if there were several modes of making the payment and one of them was adopted, that would do. That appears to have been the ratio in Unison Metals Limited as accepted by the authorities in the circular of May 16, 2008. That the circular of May 16, 2008 came after the judgment of the adjudicating a ..... 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