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2019 (6) TMI 949 - HC - Central ExciseMaintainability of writ petition - Refund of CENVAT credit - Rule 5 of 'Cenvat Credit Rules, 2004' - Statutory Appeal under Section 35-B of the CE Act - HELD THAT - A careful perusal of Section 35-B of CE Act, reveals that the powers of the Tribunal have not been circumscribed in any manner qua testing no notification plea and there is nothing before this Court to demonstrate that the Tribunal i.e., CESTAT cannot go into the aforesaid aspect of the matter. Therefore, it is clear that an alternate remedy qua impugned order is available for the writ petitioner. With regard to the alternate remedy, it is no doubt, not an absolute Rule. In other words, alternate remedy is a rule of discretion and not a rule of compulsion. Though alternate remedy is a Rule of discretion, in a long line of authorities, the Hon'ble Supreme Court has repeatedly held that exercise of writ jurisdiction on the teeth of alternate remedy, will be when the matter falls under certain specified exceptions. In the instant case, after hearing both the aforesaid learned counsel, this Court is unable to persuade itself to believe that the petitioner is able to demonstrate that it's case falls under any of the aforesaid exceptions. In other words, the facts and circumstances of this case, cannot be brought within the contours and four corners of the exceptions, adumbration of which have been made - this Court is of the considered view that owing to the factual matrix this is an appropriate case to leave it open to the writ petitioner to avail the alternate remedy by filing a Statutory Appeal to CESTAT under Section 35-B of the CE Act. Petition disposed off.
Issues Involved:
1. Refund claims under Rule 5 of Cenvat Credit Rules, 2004. 2. Transition to Goods and Services Tax (GST) regime. 3. Availability of statutory appeal under Section 35-B of the Central Excise Act, 1944. 4. Jurisdiction and exceptions to the rule of alternate remedy. Detailed Analysis: 1. Refund Claims under Rule 5 of Cenvat Credit Rules, 2004: The petitioner, holding Central Excise Registration and engaged in the manufacture of Railway products, filed two refund claims under Rule 5 of the Cenvat Credit Rules, 2004, read with relevant Notifications under Section 11-B of the Central Excise Act, 1944. The refund claims were for the periods January to March 2017 and April to June 2017, amounting to ?13,78,743 and ?40,49,608 respectively. Both claims were rejected due to the petitioner not debiting the refund amounts as required by the relevant Notification. 2. Transition to Goods and Services Tax (GST) Regime: Post the implementation of the GST regime on 01.07.2017, the petitioner carried forward the entire Cenvat credit available as on 30.06.2017 into their Electronic Credit Ledger by filing TRAN-1. The rejection of the refund claims was upheld by the Commissioner (Appeals-II) on 17.12.2018, leading to the filing of the present writ petition. 3. Availability of Statutory Appeal under Section 35-B of the Central Excise Act, 1944: The court noted that a statutory appeal remedy is available against the impugned order under Section 35-B of the Central Excise Act, 1944. The section outlines the process and conditions under which appeals can be made to the Appellate Tribunal. The court emphasized that the powers of the Tribunal are not restricted in any manner regarding the petitioner's plea about the absence of a Notification governing the transition period. 4. Jurisdiction and Exceptions to the Rule of Alternate Remedy: The court discussed the principle of alternate remedy, which is a rule of discretion and not compulsion. It cited the Supreme Court's judgment in United Bank of India vs. Satyawati Tondon, which held that the rule of alternate remedy should be strictly construed in tax and fiscal matters. The court also referred to the Supreme Court's judgment in Authorized Officer, State Bank of Travancore Vs. Mathew K.C., which outlined exceptions to this rule, including lack of jurisdiction, violation of natural justice, reopening of settled matters, and ineffective or inefficacious alternative remedies. Conclusion: The court concluded that the petitioner could not demonstrate that their case fell within any of the exceptions to the rule of alternate remedy. Therefore, the petitioner was directed to avail the alternate remedy of filing a statutory appeal to the CESTAT under Section 35-B of the Central Excise Act. The court also noted that if there is a delay in filing the appeal, the petitioner could apply for condonation of delay, which the Tribunal should consider on its merits. Final Order: The writ petition was disposed of with the direction that the petitioner may pursue the statutory appeal, and all issues, including the absence of a Notification governing the transition period, are left open for the Tribunal to decide. There was no order as to costs.
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