2016 (6) TMI 874 - HC - Central Excise

Demand of duty - maintainability of writ petition - alternative appellate remedy - request to permit the appellant/petitioner to cross examine the Chemical Examiner, whose report has been relied on in the order confirming the demand - Chemical Examiner had given the report stating that the subject product is not fertilizer. - Held that - When there is an exclusion of the Chemical Examiner s report, by an order, which was one of the factors taken into consideration for arriving at the conclusion as to whether the subject product is fertilizer or not, in normal circumstances, one would have expected the department to challenge the order made in W.P.No.30771 of 2015 dated 15.03.2016. To ascertain as to whether the department would be seriously prejudiced over the exclusion of the Chemical Examiner s report in the matter of adjudication by the appellate authority, Mr.A.P.Srinivas, learned senior standing counsel appearing for the respondent reiterated that the impugned order in original dated 01.09.2015, passed by the Commissioner of Central Excise, Chennai II Commissionerate, Chennai, could still be sustained, without relying on the Chemical Examiner s report. Such being the position, we are of the view that the appellant/petitioner has not made out a case for interference. Statute provides for an appeal remedy. As per Section 35-B of the Central Excise Act, a statutory appeal ought to have been filed within three months from the date on which the order sought to be appealed against is communicated to the Commissioner of Central Excise , or, as the case may be, the other party preferring the appeal. - Decided against the appellant.

Summary

Issues:
Challenge to order directing filing of appeal without limitation period and cross-examination of Chemical Examiner's report.

Analysis:
The appeal challenged an order directing the appellant to file an appeal before the appellate authority against an original order passed by the Commissioner of Central Excise. The Writ Court instructed the appellate authority to entertain the appeal without insisting on the limitation period due to the appellant's early approach to the court. The appellant sought to quash the original order and requested permission to cross-examine the Chemical Examiner. The appellant argued that denial of cross-examination violated natural justice principles, citing a relevant case law. The respondent contended that the report was considered at the appellant's instance and the order could stand even without it. The respondent also pointed out the failure to exhaust the statutory remedy of appeal before filing the writ petition.

The Writ Court granted the appellant the liberty to file an appeal against the original order, directing the appellate authority to decide the appeal without relying on the Chemical Examiner's report. The court emphasized that the appeal should be filed within a specified timeframe and the limitation period should not be enforced due to the early filing of the writ petition. The court rejected the appellant's request to set aside the original order, noting that the main grievance was the lack of opportunity for cross-examination. The appellate authority was instructed not to consider the Chemical Examiner's report.

The department did not challenge the exclusion of the report, arguing that the original order could stand without it. The court found that the appellant did not establish a case for interference, emphasizing the availability of the statutory appeal remedy within a specified timeframe. The court upheld the Writ Court's decision to exclude the report and grant time for filing the statutory appeal. The appeal was dismissed with no costs, and the appellant was given two weeks to file the appeal before the appellate authority, which was directed to consider the observations made in the Writ Court's order.