2017 (7) TMI 8 - HC - Customs

Maintainability of appeal - pre-deposit - production of original invoices - Held that - the petitioner pointed out that the factory was under lock out from July, 2013. Now the petitioner claims that they have been able to retrieve some of the original documents and they are prepared to produce the same. The petitioner is already a sick industry. Therefore, we are of the view that though the respondents were not guilty of denying the principles of natural justice, the petitioner could well be granted one more opportunity to produce original invoices - the matter is remitted back to the Original Authority for examination of the question without reference to the period of limitation - petition allowed by way of remand.

Summary

Issues:
Challenge to Order in Original demanding payment of Cenvat credit, non-compliance with pre-deposit condition in statutory appeal, availability of non-statutory route through writ petition under Article 226, application of doctrine of merger, granting opportunity to produce original invoices.

Analysis:
The petitioner challenged an Order in Original demanding payment of an amount equivalent to the allegedly wrongly taken Cenvat credit. The Adjudicating Authority passed the order after giving the petitioner sufficient opportunities, despite the petitioner's claim of being unable to collect all invoices due to a factory lockout. Subsequently, the petitioner's statutory appeal was dismissed by CESTAT for non-compliance with the pre-deposit condition. A regular appeal filed by the petitioner was also dismissed by the High Court on the ground that the Tribunal could not entertain an appeal without meeting the pre-deposit requirement.

After exhausting statutory remedies, the petitioner resorted to a non-statutory route by filing a writ petition under Article 226 of the Constitution. The respondents argued that the petitioner could not challenge the Order in Original once all statutory remedies were exhausted. However, the Court held that the doctrine of merger does not apply in cases where statutory appeals could not be entertained due to non-compliance with preconditions. Since the appeal before CESTAT was not entertained, the original order remained unchallenged in the eye of the law.

The petitioner, a sick industry, claimed to have retrieved some original documents and expressed readiness to produce them. Despite finding no denial of natural justice by the respondents, the Court granted the petitioner another opportunity to present the original invoices. Consequently, the writ petition was allowed, the impugned order was set aside, and the matter was remitted back to the Original Authority for re-examination without considering the period of limitation. The petitioner was directed to produce all relevant original invoices and documents on a specified date, ensuring their presence before the Adjudicating Authority to prevent default orders. Any pending miscellaneous petitions were to be closed as a result of this decision.