TMI Blog2021 (4) TMI 693X X X X Extracts X X X X X X X X Extracts X X X X ..... vailable. Therefore, we are inclined to relegate the parties to the CESTAT. We could not oblivious of the averments of breach of principles of natural justice and also the emphasis on the delay in delivering the judgment and order by the adjudicating authority; however, in the interregnum, since in the case of the very petitioner, the second Show Cause Notice for the subsequent period from April 2016 to June 2017, which came against the petitioner when challenged to the CESTAT, the judgment has been delivered in favour of the petitioner on 28.02.2020. It is not in dispute that all questions regarding factual matrix as well as legal issues raised in the first Show Cause Notice and in the second Show Cause Notice are identical. The Commun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judication of the Show Cause Notice, was on 17.02.2017 by the Anand Commissioner, as the proceedings were within the jurisdiction of Anand Commissioner. The officer concerned, who had heard the parties at the time of bifurcation of jurisdiction was transferred to Vadodara Jurisdiction and thus the Order in Original has been decided by the Commissioner, C.G.S.T. And Central Excise, Vadodara 1. The order, which is impugned, was passed on 15.03.2018. Thus, there are two fold grievance on the part of the petitioners; firstly the officer who had heard the petitioners personally at Annand, has not decided the matter and instead it is the Commissioner of Central Excise, Vadodara, who adjudicated the matter and secondly, there was substantial delay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... An ex-parte ad-interim relief in terms of para 21 (C) above may kindly be granted. (E) Any other further relief that may be deemed fit in the facts and circumstances of the case may also please be granted. 3. On issuance of notice, the respondents appeared and filed its reply dated 20.09.2018, wherein it is contended that the petition is not maintainable, as the order impugned is available under under Section 35 B of the Central Excise Act, 1944 ('the Act' for short). According to the respondents, the grievance on the part of the petitioners that the order impugned is passed by some other officer, who had not heard the matter, will have no sustainability. The officer, Ms. Mallika Mahajan, who passed the Order in Original, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pellate Tribunal ('the CESTAT' for short), Ahmedabad being the Appeal No.10576 of 2019 and the same has been allowed on merit as well as on the ground of limitation on 28.02.2020. It is, therefore, the say of the petitioner that the Tribunal since has held in favour of the petitioners entitling it to get the exemption which has been denied by the adjudicating authority, a demand containing the Show Cause Notice is not only unsustainable legally but also barred by law of limitation, as the same is given invoking larger period of limitation. 6. We have heard extensively learned advocate Mr.Amal Paresh Dave with learned advocate, Mr.Paresh Dave, for the petitioners, Mr.Parth Y. Diveshvar, learned Central Government Standing Counsel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s well as legal issues raised in the first Show Cause Notice and in the second Show Cause Notice are identical. There has been no challenge further on the part of either the revenue or the petitioner to the said order of CESTAT dated 28.02.2020 delivered in Excise Appeal No.10576 of 2019. 9. The two questions that may arise when we relegate the parties to the CESTAT; the first is of the period of limitation, which is otherwise of 90 days. The petitioner since was pursuing its remedy before this Court, the question of limitation would not come in his way. So far as the aspect of the second issue with regard to pre deposit which is the amount equal to 7.5% of the duty demand to be deposited under Section 35 F of the Act is concerned, this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... equired to pay as per the decision of the CESTAT. 12. The Communication shared with us today by the learned counsel Mr.Viral Shah, points out that as per the order of the CESTAT dated 28.02.2020, the demand within limitation on the quantity of sulphur used in manufacture of Hydroxylamine sulphate (HX/HAS) and Phosphoric Acid sold by the petitioner on payment of the duty, if is considered, the total duty including cess would come to ₹ 9,32,088.25/ . Based on this figure, the amount of pre deposit at the rate of 7.5% would come to ₹ 3,63,784/ . Subject to the deposit of this amount within a period of One Week from the date of receipt of a copy of this order and filing of the Appeal within a period of Four Weeks from the date of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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