2008 (6) TMI 49 - HC - Central Excise

Petitioner plea is that Tribunal rejected rectification application observing that the Tribunal cannot pass an order after lapse of six months, even though the application had been filed within time petitioner contention that Tribunal erred in counting the period of limitation by taking into account the period of pendency of the ROM application, is acceptable - judgment of the Apex Court in Ayyanar Spinning s case is squarely applicable petition is allowed by way of remand to tribunal

Summary

Issues:
Seeking a writ of certiorari to quash the order of the Customs, Excise and Service Tax Appellate Tribunal; Calculation of limitation period for filing a ROM application; Rejection of ROM application by the Tribunal; Availability of alternative remedy of appeal to the Apex Court.

Analysis:
The petitioner, an Export Oriented Unit, had goods worth Rs. 17,96,220 confiscated and faced penalties for clearing goods without permission and duty payment. The case went through various adjudications, including orders by the Settlement Commission and the Tribunal. The petitioner filed a ROM application within time, seeking rectification of a mistake in the Tribunal's order. However, the Tribunal rejected the application citing a six-month limitation period. The petitioner contended that the Tribunal erred in calculating the limitation period and relied on a Supreme Court judgment in a similar matter.

The counsel for the petitioner argued that the Tribunal's calculation of the limitation period was incorrect, as it included the pendency of the ROM application, contrary to Sec. 254 of the Income Tax Act. On the other hand, the Assistant Solicitor General opposed the relief, stating that the Tribunal was justified in rejecting the ROM application and that the order should not be quashed, especially considering the availability of an appeal to the Apex Court. The High Court noted that the ROM application was filed within time and that the Tribunal's calculation of the limitation period was not in line with legal principles, as established in a Supreme Court judgment. Therefore, the High Court allowed the writ petition, remanding the matter back to the Tribunal for fresh orders, ensuring the petitioner's rights were upheld in accordance with the law. No costs were awarded in the judgment.