TMI Blog2022 (5) TMI 866X X X X Extracts X X X X X X X X Extracts X X X X ..... w inferences, or in other words, errors which a court sitting as a court of appeal only could have examined and, if necessary, corrected, there is no case for the exercise of jurisdiction under Article 226 of the Constitution. The principles underlying the jurisdiction to issue a writ or order of certiorari are no more in doubt, but the real difficulty arises in applying the principles to the particular facts of a given case. In view of the facts and circumstances and the law laid down by the Supreme Court and also the sufficient cause assigned in the applications for condonation of delay, the Revenue has assigned sufficient cause for the purpose of getting the delay condoned and the Tribunal was justified in allowing the applications - application dismissed. - R/SPECIAL CIVIL APPLICATION NO. 5795 of 2022 - - - Dated:- 11-4-2022 - HONOURABLE MR. JUSTICE J.B. PARDIWALA AND HONOURABLE MS. JUSTICE NISHA M. THAKORE Appearance: Mr. Paresh M Dave (260) for the Petitioner(s) No. 1,2 Mr. Devang Vyas (2794) for the Respondent(s) No. 1,2,3 ORAL JUDGMENT (PER : HONOURABLE MR. JUSTICE J.B.PARDIWALA) 1. By this writ application under Article 226 of the Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pen market. Therefore, CENVAT Credit amounting to Rs. 19,09,76,410/- (Rupees Nineteen Crores Nine Lakhs Seventy Six Thousand Four Hundred Ten only) wrongly availed and utilized by M/s. Shah Alloys Ltd., Santej, during the period from August, 2010 to 18.12.2013 is required to be demanded recovered from them under the provisions of Rule 14 of CENVAT Credit Rules, 2004, read with Section 11A(4) [erstwhile proviso to Section 11A(1)] of the Central Excise Act, 1944. 16. Now, therefore, M/s. Shah Alloys Ltd., Block No. 2221/2222, Shah Industrial Estate, Sola Kalol Highway, Santej. Taluka Kalol, Dist. Gandhinagar [Gujarat], are hereby called upon to show cause to the Commissioner, Central Excise Service Tax, Ahmedabad-III Commissionerate having his office at Custom House, 2 Floor, Opp. Old Gujarat High Court, Navrangpura, Ahmedabad-380009 [Gujarat], as to why: (i) The CENVAT Credit amounting to Rs. 19,09,76,410/- (Rupees Nineteen Crores Nine Lakhs Seventy Six Thousand Four Hundred Ten only) wrongly availed by them (as detailed in Annexure-A to this Notice) should not be demanded and recovered from them under Rule 14 of the Cenvat Credit Rules, 2004, read with Section 11A(4) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ir statutory records i.e. in Cenvat Credit Register and further used the said inputs for manufacturing of their finished goods cleared on payment of appropriate central excise duty. Moreover, from their Bank Statement and Ledger submitted by M/s SAL, I find that the entire payment was made by M/s SAL through cheque only. Apparently, no cash transaction was seen in these Bank Statements and Ledgers to be made with these registered dealers (Noticee No. 3 to Noticee No. 12) by M/s SAL against receipt of S. S. Scrap through cenvatable invoices. From the records viz. RG 23 D Register, submitted by most of the noticees (registered dealer) during adjudicating proceedings, I do not find any discrepancy, overwriting or manipulation in these records viz. RG23 D Registers. Their Bank Statements and Ledgers also reflect all the payment received by them from M/S SAL in cheque or through Banking Channel only. Further, I do not find any evidence of financial flow back in the Bank statements and Ledgers submitted by these registered dealers as well as submitted by M/S SAL. I also find that there is no allegation in the show cause notice regarding non-filling of periodical returns by M/S SAL as wel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee of preponderance about the existence of a fact backed by documentary evidence by the investigating agency, the adjudicating authority ought to have thoroughly examined each piece of evidence in proper perspective before deciding the issue. 41. The Committee, therefore, under the provisions of Section 35E(1) of the Central Excise Act, 1944, directs the Commissioner of CGST Central Excise, Gandhinagar to apply to the Honourable Customs, Excise and Service Tax Appellate Tribunal (CESTAT) for the correct determination of the following points arising out of the said order: (i) The CESTAT may be pleased to hold that the affidavits, retracting the confessional statements, not filed before the investigating agency is not valid in view of the judicial pronouncement and hence will not take away the effect of confessional statements (ii) The CESTAT may be pleased to hold that there is enough corroborative evidence to prove that the assessee has received scrap against the invoiced goods to avail fraudulent CENVAT credit as mentioned in the grounds of appeal (iii) The CESTAT may be pleased to hold that CENVAT credit wrongly availed is recoverable from the assessee along ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ced in the open Court) (RAMESH NAIR) MEMBER (JUDICIAL) (RAJU) MEMBER (TECHNICAL) 2.7 The appeal filed by the Revenue referred to above was taken up for hearing by the Tribunal on 17th September 2021. At that point of time, a preliminary contention was raised on behalf of M/s. SAL that as no appeal had been filed by the Revenue against any other person named in the show cause notice and the Revenue having accepted the order-in-original passed by the Commissioner against the co-noticees and dealers, the appeal against M/s. SAL may be dismissed. 2.8 To the aforesaid, the Tribunal passed the following order dated 17th September 2021: Date of hearing : 17/09/2021 ORDER After hearing for some time, we find that though as per the prayer in the appeal, one of the prayer in clause-(iv) reads as under: The Hon'ble CESTAT may be pleased to hold that all the conoticees (dealers) are liable to penalty for their role in abetting the fraudulent availment of CENVAT Credit by the assessee 2. From this prayer, it appears that the department seeks to impose penalty on the co-noticees (dealers). However, the appeal was filed only again ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uded therefore, now the separate appeals against all the other Co-Noticees/Respondents were filed. He submits that even as per the review order it was a proposal to impose penalty against all the Co-Noticees. Therefore, for this reason in the appeals filed against the Co-Noticees the delay may please be condoned. He placed reliance on the following judgments: 2019 (9) TMI 324 CESTAT, Mumbai CCE Pune-III Vs. Mall Pipe Industries 2017 (345) ELT 312 (Tri-Mum) - Principal Commr of C. EX.Mumbai Vs. Metro Shoes. 2015 (324) ELT 514 (Mad)-Thanjai Study Centre Vs.. CCE, Tiruchirapalli 2019 (369) ELT 263 (Bom)- Empire Industries Ltd Vs CCE 2020 (371) ELT A46 (SC) Empire Industries Ltd Vs. Commissioner 2010 (262) ELT 3 (SC) 10CL VS. Subrata Borah Chowlek 2018 (9) GSTL 6 (Raj) - Jaipur Nagar Nigam Vs. CCE, Jaipur 2019 (368) ELT 391 (AP) - Kalathil Brothers Construction Co P Ltd Vs. CCE, Visakhapatnam-II 2014 (305) ELT 472 (P H)-CCE, Delhi-III Vs. Leading Solution India P Ltd 2020 (372) ELT 878 (Tri-Mum) - CC (IMP), ACC, Mumbai Vs. Bir Vision P Ltd 2019 (369) ELT 1465 (Tri-Hyd) Creative Industries P Ltd Vs. CCE, Hyde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... siderable lapse of time cannot be admitted thereby disturbing the rights accrued in their favour by reason of delay in filing appeals. He placed reliance on the following judgments: Commissioner Of Central Excise, Chennai Vs. B.S Garg- 2014 (300) Elt 413(Tri. Chennai) Commissioner, Chennal Vs. B.S Garg 2016 (339) ELT 518 (Mad) Commissioner, Bangalore Vs. N.A Jayram- 2003 (161) ELT 412 (Tri Bang) Commissioner, Mangalore Vs. L.P Shenoy 2003 (162) ELT 297 (Tri. Bang) 3.1 He further submits that there is no reason given by the Revenue for explaining and justifying delay of 1433 days and the only grounds are about inadvertent mistake/error in filling appeal only against one party vague reference to handling of adverse workload during implementation of GST and Covid-19 Pandemic. The department has filed new appeals in December, 2021 only when a preliminary objection was raised on behalf of the only Respondent M/s Shah Alloys Limited on 17.09.2021 and the action of filing fresh appeals against new parties is apparently to cover up fatal error in accepting the common adjudication order for such other parties pointed out by the respondents. A substantia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nst the invoiced goods to avail fraudulent CENVAT credit as mentioned in the grounds of appeal. (iii) The Hon'ble CESTAT may be pleased to hold that CENVAT credit wrongly availed is recoverable from the assessee along with interest and consequential penalty. (iv) The Hon'ble CESTAT may be pleased to hold that all the co-noticees (dealers) are liable to penalty for their role in abetting the fraudulent availment of CENVAT credit by the assessee. (v) Pass any other order on merits, as deemed fit by the Hon'ble Tribunal. From the above prayer No. (iv) it is clear that the revenue had clear intention to challenge dropping of penalties against the all co-noticees. Therefore, it is only a technical mistake that instead of filing No. of appeals against all the Co-noticees only one appeal was filed against the main appellant i.e. M/S Shah Alloys Ltd. However, one of the prayer in that appeal is to impose the penalties on the Co-noticees therefore, there is a sufficient reason for condoning delay. 5. Accordingly, we condone the delay in filling these present appeals. All the appeals to be tagged and list together with main Appeal No. E/10102/2018 on 25t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntra, Mr. Devang Vyas, the learned Additional Solicitor General appearing for the Revenue submitted that no error not to speak of any error of law could be said to have been committed by the Tribunal in passing the impugned order condoning the delay of 1433 days, more particularly, having regard to the facts and circumstances of the case. According to Mr. Vyas, there is nothing on record to indicate that the appeals on the part of the Revenue were mala fide or deliberate. The history of this litigation speaks for itself. 8. Mr. Vyas would submit that essentially, the writ applicants are praying for a writ of certiorari for the purpose of getting the impugned order passed by the Tribunal quashed and set aside. A writ of certiorari may be issued by a writ Court only if the impugned order is found to be palpably without jurisdiction. 9. In such circumstances referred to above, Mr. Vyas prays that there being no merit in this writ application, the same may be rejected. ANALYSIS: 10. Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for our consideration is whether the Tribunal comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ked if it is only an error of law apparent on the face of the record and not every error either of law or fact which can be corrected by a superior court in the exercise of its statutory powers as a court of appeal or revision. Where the errors cannot be said to be errors of law apparent on the face of the record but they are merely errors in appreciation of documentary evidence of affidavits, errors in drawing inferences or omission to draw inferences, or in other words, errors which a court sitting as a court of appeal only could have examined and, if necessary, corrected, there is no case for the exercise of jurisdiction under Article 226 of the Constitution. The principles underlying the jurisdiction to issue a writ or order of certiorari are no more in doubt, but the real difficulty arises in applying the principles to the particular facts of a given case. 13. What is the scope of the power of the superior court to examine collateral facts for issuing a writ of certiorari has been summarised in Halsburys Laws of England, Third Edition, Volume II, in paragraph 270, at page 142 as follows : The case is more difficult where the jurisdiction of the inferior tribunal depend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that it is undoubtedly true that the applicant seeking condonation of delay is duty-bound to explain the reasons for the delay but as has been held in several cases, the very manner in which the bureaucratic process moves, if the case deserves merit the court should consider the question of condonation from that perspective. 17. In another case reported as State of Bihar v. Kameshwar Prasad Singh, (2000) 9 SCC 94 , again the Supreme Court has held that dismissing the appeal on technical ground of delay would, instead of advancing interests of justice, result in failure of justice. 18. In G. Ramegowda v. Spl. Land Acquisition Officer, AIR 1988 SC 897, it has been held by the Supreme Court that the expression `sufficient cause' in Section 5 must receive a liberal construction so as to advance substantial justice. 19. Further, the Supreme Court in N. Balakrishnan v. M.Krishnamurthy, AIR 1998 SC 3222 has held that in the absence of anything showing mala fide or deliberate delay as a dilatory tactic, the Court should normally condone the delay. It was further held that where a court condones delay in positive exercise of discretion, the superior Court and more p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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