2015 (10) TMI 1297 - HC - Central Excise

Maintainability of writ petition - condonation of delay in filing an appeal before Commissioner (Appeals) - directly challenging the order-in-original passed by the adjudicating authority - Denial of CENVAT Credit - Bar of limitation - Held that - Tribunal has dismissed the appeal preferred by the petitioner against the order passed by the Commissioner (Appeals) by concurring with the view expressed by the Commissioner (Appeals). Insofar as condonation of the delay caused in filing the appeal by the Commissioner (Appeals) is concerned, the Full Bench of this court had concluded the issue by holding that there is no power to condone the delay beyond a period of thirty days as provided by the proviso to section 35 of the Act nor can the appeal be filed beyond a period of ninety days. Under the circumstances, the impugned orders passed by the Commissioner (Appeals) and the Tribunal do not suffer from any legal infirmity warranting interference. Perusal of the impugned order-in-original reveals that the petitioner had raised a contention as regards the storage tanks being capital goods and the M.S. Angles, Channels, H.R. Plates, bars etc. being used for repair and maintenance thereof and alternatively had submitted that in case H.R. Plates, Angles, Channels and bars are not considered to be capital goods, cenvat credit is admissible as input credit instead of capital goods credit and the adjudicating authority has, after considering the said submission on merits, turned down the contention of the petitioner. Under the circumstances, this is not a case where the impugned order suffers from the infirmity of having been passed in breach of the principles of natural justice nor has the adjudicating authority acted in excess of its jurisdiction nor is the order without jurisdiction. It is also not the case of the petitioner that the adjudicating authority has acted in flagrant disregard of law or rules of procedure. Under the circumstances, the present case does not fall within any of the exceptional circumstances envisaged by the Full Bench in the order passed in this very petition so as to warrant interference in exercise of powers under Article 226 of the Constitution. - Decided against assessee.

Summary

Issues:
Challenging order passed by Tribunal and Commissioner (Appeals) regarding condonation of delay in filing appeal under Section 35 of Central Excise Act, 1944; Invoking jurisdiction under Article 226 of the Constitution for condonation of delay; Applicability of exceptional circumstances for invoking writ jurisdiction directly against order passed by adjudicating authority.

Analysis:
1. The petitioner challenged the order passed by the Tribunal and Commissioner (Appeals) regarding the condonation of delay in filing an appeal under Section 35 of the Central Excise Act, 1944. The Tribunal concurred with the view that the delay could not be condoned beyond 30 days, as provided by the proviso, and dismissed the appeal. The Full Bench of the High Court clarified that the limitation under Section 35 cannot be extended beyond 30 days. The petitioner sought relief under Article 226 of the Constitution, arguing that exceptional circumstances existed, allowing for the invocation of writ jurisdiction.

2. The Full Bench answered the questions posed by a Division Bench, stating that the delay in filing an appeal under Section 35 cannot be condoned beyond 30 days. Additionally, it was clarified that a writ petition under Article 226 cannot be used to condone the delay in filing an appeal beyond the statutory limit. However, the Full Bench acknowledged that under exceptional circumstances, a petition under Article 226 could challenge an order passed by the original adjudicating authority, subject to specific conditions.

3. The petitioner contended that the impugned order-in-original suffered from serious infirmities as the adjudicating authority did not properly consider the definition of "capital goods" under the Cenvat Credit Rules, 2004. The petitioner argued that the goods in question were capital goods or, alternatively, were eligible for input credit. The petitioner relied on precedents to support their claim that denial of credit on items used for storage tanks would result in gross injustice.

4. The respondent argued that the case did not meet the exceptional circumstances outlined by the Full Bench for invoking writ jurisdiction directly against the adjudicating authority's order. They contended that there was no jurisdictional error, excess of power, or violation of natural justice in the impugned order.

5. The High Court held that the impugned orders by the Commissioner (Appeals) and the Tribunal did not have any legal infirmity that warranted interference. The Court found that the case did not fall within the exceptional circumstances required to invoke writ jurisdiction under Article 226. Consequently, the petition challenging the order-in-original directly before the High Court was dismissed for lack of merit.