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TMI Blog2013 (10) TMI 1049X X X X Extracts X X X X X X X X Extracts X X X X ..... CEGAT was not maintainable - The Court dismissed the writ petition on 3.5.2010 on the ground of alternative remedy to file reference under the Central Excise Act - The department instead of approaching the Tribunal for making reference under Section 35 G (1) filed a reference directly in the High Court with delay - In the process more than 11 years time was consumed in challenging the order of CEGAT. The Central Excise Department has been grossly negligent in pursuing the matter - It filed appeal in the Supreme Court, which was not maintainable and thereafter a misconceived writ petition, which was dismissed on the ground of alternative remedy - In the process the department has consumed 11 years and 227 days within which the assessee must have arranged his financial affairs, which need not be disturbed at such distance of time - the delay condonation application rejected – Decided against Petitioner. - Central Excise Reference application No. (1) of 2011 - - - Dated:- 25-10-2013 - Hon. Sunil Ambwani And Hon. Surya Prakash Kesarwani,JJ. ORDER 1. We have heard Shri Ramesh Chandra Shukla, leaqrned counsel for the Commissioner of Central Excise, Meerut-the appellant. Sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be produced. A notice was given with details of the inspections and observations made by the intelligence running into 43 pages proposing confiscation of crates and bottles of aerated water of different brands and the sale proceeds seized on 28.9.1993, and imposition of Central Excise Duty amounting to Rs.7,33,36,132/- and penalty, requiring the respondents to show cause to such seizure, imposition of excise duty and penalties. 6. M/s MBL filed a reply on 7.11.1994. After considering the reply and the evidences the Commissioner of Central Excise, Meerut passed an order imposing Central Excise Duty of Rs.2,60,85,083/- under Rule 9 (2) of the Central Excise Rules, 1944 read with proviso to Section 11-A (1) of the Central Excise and Salt Act, 1944, and penalty of Rs.65,000/- on M/s MBL under rule 9 (2), 52A, 226 and 173-Q (1) of the Central Excise Rules, 1944. He also directed confiscation of the 385 crates (9240 bottles) of aerated water on 28.9.1993 from the factory premise; 2750 crates and 57 bottles (52617 bottles) of aerated water of different brands, provisionally on the giving bond furnishing cash security of Rs.50,000/- only and appropriation of Rs.50,000/- by encashment of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . of 1999 (CC7045-7046 of 1999) against the judgment. Hon'ble the Supreme Court dismissed the special leave petition on 4.2.2000 as withdrawn so that the petitioner may approach the High Court under Art.226 of the Constitution of India. 9. The Commissioner of Central Excise, Meerut filed Writ Petition No.1339 of 2001 on 18.12.2001 i.e. after 10 months and 14 days from the order of CEGAT. The writ petition was admitted on 2.1.2002. Later it was dismissed for want of prosecution on 11.10.2006 and was thereafter restored in July, 2009 after 3 years. 10. The writ petition was dismissed on 3.5.2010 with following order:- "List revised. No one appears on behalf of the petitioner. By means of the present petition the petitioner has challenged the order of the Tribunal dated 28th of May,1999. The writ petition was filed on 18.12.2001. Learned Counsel for the respondent submitted that against the order of the Tribunal reference lies under Section 35G of the Central Excise Act and, therefore, the writ petition is liable to be dismissed on the ground of alternative remedy. He further submitted that the appeal is barred by laches as it had been filed after one year. In view of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Joint Registrar on 3.8.2011. 13. In the counter affidavit of Shri Shachindra Kumar Goyal, General Manager (Finance Accounts) of M/s Moon Beverage Ltd., it is stated that the application is hopelessly barred by time and is not maintainable on which the Supreme Court of India was pleased to dismiss the special leave petition on 4.2.2000 as withdrawn. Instead of filing the statutory application under Section 35G of the Central Excise Act, a Writ Petition (Civil) No.1339 of 2001 was filed after 2 years and 7 months of the order of CEGAT, which was filed just to cover the lapse of delay. A counter affidavit was filed by the respondents, taking the plea that the writ petition is not maintainable. The counter affidavit was served on counsel appearing for the Central Excise Department on 23.9.2005. The writ petition was dismissed for want of prosecution on 11.10.2006 and on which affidavit attested/ sworn on 4.6.2009 was filed. On 3.5.2010, when the matter was taken up, no one appeared on behalf of the petitioner. The Court found that the petitioner has challenged the order of the Tribunal dated 28th May, 1999 by filing writ petition on 18.12.2001. A reference lies against the order an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dy to file reference under the Central Excise Act. The Court, however, did not make any comment nor expressed any opinion on the latches. The department instead of approaching the Tribunal for making reference under Section 35 G (1) filed a reference directly in the High Court with delay. In the process more than 11 years time was consumed in challenging the order of CEGAT. 16. We do not find that the long delay of 11 years and 227 days has been sufficiently explained by the Central Excise Department to entertain Central Excise Reference, which in any case has been filed without following procedure prescribed under Section 35G (1) and (2) of the Act. The Central Excise Department has been negligent for more than one reason. Firstly it filed Special Leave Petition against the order in the Supreme Court, which was withdrawn by the counsel appearing for the Central Excise Department. The department thereafter filed a misconceived writ petition, which was dismissed for want of prosecution in the year 2006. It took three years for the department to file restoration application, after which the writ petition was dismissed on the ground of alternative remedy of filing reference. The dep ..... X X X X Extracts X X X X X X X X Extracts X X X X
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