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2018 (8) TMI 615 - HC - Central ExciseCondonation of delay in filing appeal - Section 35H of the Central Excise Act - Held that - The petitioner was served with a duly attested copy of the order dated 19.03.2014, and the Commissioner (Appeals) has found that there is no denying the fact that the appellant (present petitioner) had received the attested copy of the said order. Against the impugned order as contained in Annexure- 12 passed by Commissioner (Appeals), the petitioner has got statutory remedy before CESTAT , therefore, finding that the petitioner has got the statutory remedy against the impugned order dated 19.03.2014 as well as the order contained in Annexure- 12 to the present writ application, we are not inclined to exercise our powers in extra-ordinary writ jurisdiction to entertain the present writ application. Application dismissed.
Issues:
Challenge to recovery notice for Central Value Added Tax (CENVAT) credit and penalty under Central Excise Act, 1944 and Central GST Act. Non-service of assessment order. Appeal before Commissioner (Appeals) against recovery proceedings. Contention regarding non-availability of original order for appeal. Failure to file appeal against order dated 19.03.2014. Condonation of delay in filing appeal. Availability of statutory remedy before Central Excise and Service Tax Appellate Tribunal (CESTAT). Analysis: The writ application was filed to challenge a notice for recovery of Central Value Added Tax (CENVAT) credit and penalty issued under the Central Excise Act, 1944 and Central GST Act. The petitioner contended that the assessment order dated 19.03.2014 was not served upon them by the Assessing Authority, depriving them of the opportunity to appeal. The Commissioner (Appeals) acknowledged the non-service of the original order but stated that since an attested copy was served, an appeal could have been filed against it. During the appeal process, the petitioner received a communication regarding the cancellation of a notice issued under the Customs Act. However, the Commissioner (Appeals) concluded that the appeal against recovery proceedings remained valid, despite the cancellation of the notice. The petitioner's request for a certified copy of the original order was also refused by the Commissioner (Appeals). The Union of India, represented by the Solicitor General, argued that the petitioner had not availed the statutory remedy of filing an appeal against the order dated 19.03.2014, despite being served with an attested copy of the order. The court noted that under Section 35H of the Central Excise Act, an appeal must be filed within 60 days of the order being served. The court found that the petitioner had the statutory remedy to appeal against the orders dated 19.03.2014 and the subsequent order contained in Annexure-12. Therefore, the court declined to entertain the writ application and dismissed it, granting the petitioner the liberty to seek statutory remedies as per the law, including approaching the Central Excise and Service Tax Appellate Tribunal (CESTAT) if advised to do so. In conclusion, the court dismissed the writ application, emphasizing the availability of statutory remedies for the petitioner to challenge the orders in question before the appropriate authorities, such as CESTAT, in accordance with the law.
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