2016 (6) TMI 1178 - HC - Central Excise

Maintainability of petition - the petitioner fairly concedes that though they had pleaded in the reply to the SCN dated 10.10.2013 that due to some unforeseen reasons they had discontinued the manufacturing activities and vacated the premises at Pondicherry and the said fact though noted by the Original Authority while considering their case the same was not canvassed before the Original Authority before passing the order dated 24.03.3014 - Held that - The issue being a factual issue with regard to the closure of the manufacturing activity the same has to be necessarily agitated before the Appellate Tribunal which is entitled to re-appreciate the factual position - petition dismissed being non-maintainable - decided against Petitioner.

Summary

Issues:
Challenge to order rejecting refund claim - Failure to raise crucial point before authorities - Availability of alternate remedy of Appeal to CESTAT - Concern regarding re-agitating factual issue before Appellate Tribunal.

Analysis:
In this case, the petitioner challenged an order rejecting their refund claim, which was based on the failure to raise a crucial point regarding the closure of manufacturing activities before the authorities. The petitioner admitted that they did not adequately present this point before the Original Authority or the Appellate Authority, leading to the rejection of their claim. The High Court noted that the petitioner had an effective alternate remedy of Appeal under section 35(b) of the Central Excise Act, 1944 to the CESTAT. Since the issue of manufacturing activity closure was a factual matter, it needed to be raised before the Appellate Tribunal for proper consideration.

The High Court addressed the petitioner's apprehension that the Tribunal might not allow them to raise the contention due to lack of emphasis on it before the Appellate Authority. However, the Court pointed out that the petitioner had indeed mentioned the closure of manufacturing activities in their reply to the show cause notice, which was acknowledged by the Original Authority in their order. Therefore, the Court concluded that the Writ Petition was not maintainable at that stage and granted liberty to the petitioner to approach the Tribunal. The Court directed the Tribunal to consider the petitioner's case promptly, preferably within six months, given the nature of the refund claim and the specific contention of business closure.

Ultimately, the High Court disposed of the Writ Petition without costs, allowing the petitioner to pursue their case before the Tribunal for a more thorough review of the factual issues involved. The judgment emphasized the importance of presenting all relevant points before the appropriate authorities to ensure a fair consideration of the claims made.