2016 (12) TMI 1441 - HC - Central Excise

SSI unit - wrongful availment of CENVAT credit - Rubber /Ebonite Roll - Held that - Shri Chitan Dave appearing for the Department has filed an affidavit in the Civil Application to answer this contention of the petitioner. He has also produced xerox copy of the Registers of the concerned Department. Despite this position, the Court had called upon learned Advocate Shri Dave to personally verify the Registers and verify the claim made by the petitioner with regard to filing of the appeal before a wrong forum, to which Shri Dave states that he has personally verified the Inward Register maintained by the office where according to the petitioner the appeal was initially filed and has confirmed that such appeal was indeed filed before that authority. He therefore urges that he would not seriously object if the matter is remanded back to the stage of Commissioner (Appeals) - appeal allowed by way of remand.

Summary

Issues:
Petition to quash impugned orders, Alleged wrongful availment of Cenvat Credit, Condonation of delay in filing appeal, Jurisdictional error in filing appeal, Technical grounds vs. merits of the case, Remand of the matter to Commissioner (Appeals).

Analysis:
The petition sought to quash an order passed by the CESTAT and subsequent orders related to the alleged wrongful availment of Cenvat Credit by the petitioner company. The Deputy Commissioner had confirmed the demand raised in a show cause notice by passing an Order in Original. The petitioner then appealed to the Commissioner (Appeals)-I, seeking condonation of a 64-day delay in filing the appeal. The delay was attributed to mistakenly filing the appeal before a wrong forum within the same Department. The Commissioner (Appeals)-I dismissed the application for condonation of delay, citing Section 35 of the Central Excise Act, leading to the petitioner's appeal to the CESTAT, which was rejected.

The petitioner contended that there was no delay in filing the appeal against the Order in Original, but it was mistakenly filed before a different jurisdiction of the Commissioner (Appeals). The petitioner argued that the technical objection raised by the authorities was unjustified, emphasizing the strong merits of the case that warranted proper adjudication rather than dismissal on technical grounds. The Department responded by filing an affidavit and producing relevant department registers, which were verified by the court-appointed advocate. Upon confirmation that the appeal was indeed filed before the wrong forum, the Department expressed willingness for the matter to be remanded back to the Commissioner (Appeals).

Considering the facts presented and the acknowledgment of the jurisdictional error in filing the appeal, the Court decided to remand the matter to be heard by the correct authority, the Commissioner (Appeals)-I, Central Excise, Ahmedabad. The Commissioner (Appeals) was directed to consider the petitioner's contentions regarding the timely filing of the appeal but before a different forum. The Court emphasized expeditious handling of the case due to the time elapsed. Consequently, the petition was allowed to the extent of remanding the matter, with no costs imposed. The Court also noted that the Civil Application did not survive in view of the main matter's resolution and disposed of it accordingly.