TMI Blog2022 (1) TMI 761X X X X Extracts X X X X X X X X Extracts X X X X ..... ailed the said statutory remedy, challenged the order in original impugned contending that they have manufactured the concrete mix at the project site which is exempt under Circular dated 6.1.1998 and no RMC was manufactured. It is true that the appellants have not availed the alternative remedy of statutory appeal available under the Act and have filed the writ petition challenging the order in original, but the Writ Court not merely dismissed the writ petition as not maintainable but further proceeded to decide the matter on the merits of the case, thereby concluded that the concrete mix manufactured by the appellants at the project site classified by the adjudicating authority as RMC is justifiable. It would be appropriate in the interest of justice and equity to permit the appellants to prefer an appeal before the first appellate authority i.e., Commissioner of Central Excise (Appeals) to consider the matter on merits without going into the issue of limitation subject to imposing costs and the petitioner depositing the amount as required, for preferring an appeal - In the usual course if the assessee knocks the doors of the Writ Court without exhausting the alternative re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ely adjacent to the project site. Thus, there was also no removal of the concrete mix as it was captively used at the site of the residential project itself. 3. The manufacture of concrete mix at project site for the purpose of construction was exempt from the levy of excise duty in terms of Notification No.4/1997-CE, dated 1.3.1997. It appears, similar notifications came to be issued under the Act. The latest of such notification which is applicable to the subject tax period is Notification No.12/2012-CE, dated 17.3.2012. 4. The relevant entry reads thus; S. No. Chapter or heading No. or sub- heading No. Description of goods Rate Conditions 144. 38 Concrete mix manufactured at the site of construction for use in construction work at such site Nil --- 5. Further, the CBIC has issued a Circular bearing No.368/1/98, dated 6.1.1998. The relevant clauses of the Circular are quoted hereunder for ready reference; 5. A doubt has been raised as to whether concrete mix manufactured at site usi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts that they were under the bona fide belief that the appeal was filed against the order in original; On receipt of the impugned letter dated 3.9.2020 from respondent No.2 directing them to immediately pay the duty, interest and penalty levied in the impugned order in original, non filing of the appeal by their Tax Consultant is said to have come to their knowledge. By that time, the extended period for filing the appeal before the first appellate authority had already expired. In such circumstances, the appellants had approached the Writ Court seeking for a writ or direction quashing the impugned order in original passed by respondent No.1 or alternatively permit the appellants to file an appeal before the first appellate authority with a direction to consider the same on merits without raising the issue of limitation. 8. The Writ Court on examining the explanation offered by the appellants for not filing the statutory appeal held that the reasons for delay caused explained must be construed as unreasonable. Thereafter, proceeded to examine the challenge made to the order in original said to have been passed without jurisdiction. Placing reliance on the decision of the Hon ble ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the light of the test propounded by the Hon ble Apex Court in Larsen and Toubro, supra, vis- -vis Circular dated 6.1.1998 11. Learned counsel Sri.Jeevan J Neeralgi, appearing for the Revenue supporting the impugned order would submit that no writ petition is maintainable against the order in original filed beyond the limitation period prescribed under the statute having regard to the law enunciated by the Hon ble Supreme Court in the case of Oil and Natural Gas Corporation Limited v. Gujarat Energy Transmission Corporation Ltd., and others, reported in (2017) 5 SCC 42 and Assistant Commissioner (CT) LTU, Kakinada and others v. M/s Glaxo Smith Kline Consumer Healthcare Ltd., reported in 2020 SCC Online SC 440. It was further argued that the learned Single Judge has rightly analyzed the material on record in the light of the judgment of the Hon ble Apex Court in the case of Larsen and Toubro, supra, and rejected the writ petition, the same deserves to be confirmed by this Court. 12. We have carefully considered the rival submissions of the learned counsel appearing for the parties and perused the record. 13. It is not in dispute that the order in original was p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r in excess of the jurisdiction or by overstepping or crossing the limit of jurisdiction or that there is failure of justice, or it has resulted in gross injustice, it would be a case falling under the exceptional category for exercising the power under Article 226 of the Constitution and to interfere with the order of the original authority or the Appellate Authority, as the case may be. In order to find out as to whether the case is fit for exercising of the power under Article 226 of the Constitution, we may record that as per the decision of the Delhi High Court, Rule 5, on the basis of which the original authority has passed the order for levying of tax is held to be ultra vires to Section 67 of the Act. Further, the matter may fall in the realm of correct interpretation of Section 67 as to whether the expenses reimbursed by the consumer to the service provider, can be included for the purpose of computation of the service tax or not. We do not propose to express any further view on the said aspects in view of the order which we may pass hereinafter, but suffice it to observe that in view of the decision of the Delhi High Court, there was a strong case on merits on the part of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... facture has to be clearly discussed and reasons are to be assigned for such distinct process. Further, the manner of delivery also assumes significance. The adjudicating authority appears to have proceeded to analyze on the plant and machinery set up for its manufacture in detail, but not in the light of the notification issued by the CBIC/Union Government vis- -vis the dictum laid down by the Hon ble Apex Court in Larsen and Toubro, supra , in its entirety. 17. In the usual course if the assessee knocks the doors of the Writ Court without exhausting the alternative remedy of appeal available under the Act, no exception can be found with the Writ Court in rejecting the writ petition as not maintainable, but having regard to the peculiar facts and circumstances of the case, as in the present case when the appellants have approached the Writ Court with an alternative relief of seeking permission to file an appeal before the appellate authority, any finding recorded on the merits of the case which indeed relates to facts warrants interference. 18. Thus, it is clear that in the absence of power vested with the appellate authority to condone the delay, in the peculiar facts an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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