2017 (2) TMI 1409 - HC - Central Excise

Legality of an order of the Additional Commissioner, Bolpur Central Excise and Service Tax Commissionerate - non-applicability of Rule 8(3A) of the Central Excise Rules, 2002 - Held that - In the writ petition out of which this appeal arises however did not contain any prayer for declaring the aforesaid provision as ultra vires. In course of submission before us by the learned Counsel for the appellant urged this point before us but as it was not taken before the learned First Court, we do not think at the appellate stage question of validity of the aforesaid provision ought to be addressed. The appeal and the stay petition shall stand dismissed as not pressed.

Summary

Issues:
Delay in preferring the appeal, legality of order of Additional Commissioner, challenge to Rule 8(3A) of Central Excise Rules, withdrawal of appeal with liberty to challenge validity of provision.

Delay in Preferring the Appeal:
The judgment addresses an application for condonation of delay of 34 days in preferring the appeal. The Court, after reviewing the petition, acknowledges that the delay was due to reasons beyond the control of the appellant/applicant. Consequently, the Court condones the delay, and the application is disposed of without the need for an affidavit from the Revenue's counsel.

Legality of Order of Additional Commissioner:
The appellant challenges the legality of an order issued by the Additional Commissioner, Bolpur Central Excise and Service Tax Commissionerate, confirming a demand of ?18,21,023. The appeal against this order was dismissed by the Appellate Authority on grounds of delay. Seeking various reliefs, the appellant filed a writ petition before the learned First Court. However, during the proceedings, the appellant's counsel raised a point regarding the non-applicability of Rule 8(3A) of the Central Excise Rules, citing its declaration as ultra vires by other High Courts. Despite this argument, as the writ petition did not specifically challenge the provision's validity, the Court did not address this issue at the appellate stage. The appellant was granted leave to withdraw the appeal with liberty to challenge the provision's constitutionality before the appropriate forum in the future.

Challenge to Rule 8(3A) of Central Excise Rules:
The appellant's counsel argued against the applicability of Rule 8(3A) of the Central Excise Rules, referencing its declaration as ultra vires by other High Courts. Although this point was raised during the proceedings, since it was not part of the original writ petition, the Court did not delve into the validity of the provision at the appellate stage. The appellant was permitted to withdraw the appeal with the opportunity to challenge the provision's constitutionality in the future before the appropriate legal forum.

Withdrawal of Appeal with Liberty to Challenge Validity of Provision:
Following the appellant's request, the Court granted permission to withdraw the appeal with liberty to challenge the constitutionality of Rule 8(3A) of the Central Excise Rules before the suitable legal forum in the future. The appeal and the stay petition were dismissed as not pressed, but this dismissal did not prevent the appellant from initiating a fresh action questioning the provision's validity in the appropriate legal setting. No costs were awarded in this matter.