2021 (3) TMI 492 - HC - Central Excise

Maintainability of appeal - Extended period of limitation - petitioner-Company did not prefer an appeal within the period of limitation prescribed under the Act and approached this Court under Article 226 of Constitution of India - HELD THAT - It is not in dispute that the writ petition has been preferred bypassing the alternative remedy of appeal available under the Central Excise Act, 1944 by the petitioner. Even after receipt of the detention order dated 22.03.2015 assuming that the petitioner had no knowledge of service of Order-in-Original, no effort was made on its part to prefer an appeal. Writ petition was preferred after expiry of the statutory period of limitation without any cogent explanation. This Court does not find any grounds made out to entertain the writ petition - Petition dismissed.

Summary

Issues:
1. Challenge to Order in Original dated 28.03.2013 for Central Excise Duty and penalty.
2. Challenge to detention notice dated 22.03.2015 for recovery of alleged duty and penalty.
3. Applicability of extended period of limitation under section 11A (1) of Central Excise Act.
4. Petitioner's contention regarding non-availment of CENVAT Credit.
5. Failure to challenge Order in Original within prescribed time limit.
6. Entitlement to approach High Court under Article 226 after expiry of limitation period.

Analysis:

1. The petitioner sought relief for quashing the Order in Original dated 28.03.2013, contending it was barred by limitation and led to injustice. The inspection revealed evasion of excise duty, leading to a show-cause notice under section 11A (1) of the Central Excise Act. The petitioner argued against the applicability of the extended limitation period under section 11A (1) in their case.

2. Additionally, the petitioner challenged a detention notice dated 22.03.2015 for recovery of duty and penalty based on the Order in Original. The petitioner claimed ignorance of the order until the detention notice was served, leading to a lack of opportunity to challenge it within the prescribed time.

3. The petitioner maintained that they did not avail CENVAT Credit on capital goods and cooperated with the investigation. They argued that no excise duty was levied as no credit was taken during plant erection. The petitioner alleged lack of knowledge about the Order in Original until the detention notice was received.

4. Despite the Revenue's argument that the petitioner did not appeal within the limitation period, the petitioner contended that due to lack of knowledge about the Order in Original, they could not challenge it within the prescribed time. The petitioner deposited a sum but failed to appeal within the statutory limit.

5. The Court noted that the petitioner bypassed the appeal remedy under the Central Excise Act and approached the High Court under Article 226 after the limitation period expired. Citing a Supreme Court decision, the Court stated that such petitions should not be entertained if an alternative remedy is available and not pursued within the prescribed time.

6. Ultimately, the Court dismissed the writ petition, emphasizing that the petitioner failed to avail the statutory remedy of appeal within the limitation period. The Court found no grounds to entertain the petition due to the delay in approaching the High Court and failure to provide a satisfactory explanation for not challenging the Order in Original within the prescribed time limit.