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TMI Blog2014 (4) TMI 1026X X X X Extracts X X X X X X X X Extracts X X X X ..... STAT, on 28-10-2009 [2010 (251) E.L.T. 433 (Tri.-Del.)], to the Adjudicating Authority, for adjudication, afresh. After remand, the Additional Commissioner has dropped proceedings not only with respect to these show cause notices, but also with respect to show cause notices for the periods 1-4-2002 to 31-3-2003, 1-4-2003 to 31-1-2004, 1-2-2008 to 31-12-2008, 1-1-2009 to 31-12-2009 and 1-1-2010 to 30-11-2010 by holding that the petitioner is not liable to pay duty on FOC kits. Appeals with respect to notices for the period 1-7-2004 to 31-12-2004, 1-1-2005 to 31-3-2005, 1-4-2005 to 30-6-2005, 1-7-2005 to 28-2-2006, 1-3-2006 to 31-8-2006, 1-9-2006 to 28-2-2007, 1-3-2007 to 31-1-2008 are pending before CESTAT. 3. The appeal, in the present case, pertaining to show cause notice and assessment order for the period 1-2-2004 to 30-6-2004, was dismissed by the Appellate Authority as barred by limitation. The appeal filed before the CESTAT was dismissed as withdrawn. The delay in filing the appeal was occasioned as the assessment order was never served upon the petitioner and was only made available on 9-7-2007. The appeal was filed within limitation from date of receipt of a copy of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the Act. Counsel for the respondents places reliance on the following judgments :- Singh Enterprises v. Commissioner of C. Ex., Jamshedpur, 2008 (221) E.L.T. 163 (S.C.); Commissioner of Customs & Central Excise v. Hongo India (P) Ltd. - 2009 (236) E.L.T. 417 (S.C.); D.R. Industries Ltd. v. Union of India - 2008 (229) E.L.T. 24 (Gujarat); Delta Impex v. Commissioner of Customs (ACU), New Delhi, 2004 (173) E.L.T. 449 (Del.); M.R. Tobacco Private Limited v. Union of India, 2004 (178) E.L.T. 137 (Del.); Aradhana Industries Pvt. Ltd. v. Union of India, 2005 (191) E.L.T. 119 (Gujarat); Hardeep Synthetic Mills Pvt. Ltd. v. Union of India, 2009 (240) E.L.T. 178 (Guj.) = 2011 (21) S.T.R. 337 (Guj.) and Raj Chemicals v. Union of India, 2013 (287) E.L.T. 145 (Bom.). It is further submitted that dropping of similar show cause notices is involved in the above cases. 5. We have heard counsel for the parties, perused the pleadings, the impugned orders, show cause notices, appended with the petition and all relevant facts necessary for adjudication of this case. It would be necessary to point out that counsel for the petitioner has not addressed arguments on the vires of Section 35(1) o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... remand the matter to the original authority to consider the matter afresh and to determine the value of excavator and to determine the duty liability/Cenvat credit to be reversed on the excavator inputs and spares/extra spares supplied as per Rules 3 & 4 of the Cenvat Credit Rules. The original authority will consider me matter afresh after granting reasonable opportunity of hearing to the appellant. In the facts and circumstances of the case, we do not find that this is a case involving any intention to evade excise duty. Therefore, no penalty is warranted and accordingly, the same is set aside. The appeal is allowed by way of remand on the above terms." After remand, show cause notices for the periods 1-4-2002 to 31-3-2003 and 1-4-2003 to 31-1-2004 were dropped on merits vide common order dated 25-1-2011. A relevant extract from the order reads as follows :- "In view of the legal position set out in various judicial pronouncements cited supra, I find that where the Central Excise duty paid is more than the Cenvat credit availed; no further duty liability arises on part of the assessees. In the instant case also. I find that the noticee availed Cenvat credit on the inputs. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he show cause notice. The Assessing Authority, vide order dated 25-1-2006, confirmed a demand of Rs. 34,03,468/- and imposed a penalty of Rs. 44,03,468/-. The petitioner received a letter under Section 11AB of the Act, dated 21-9-2006, demanding duty and penalty along with interest, by reference to order dated 25-1-2006. The petitioner replied that it has no knowledge of the assessment order. The petitioner addressed a letter dated 9-10-2006 praying for supply of a copy of the order. The Superintendent, replied vide letter dated 5-2-2007 that as per postal records, the order was delivered to the petitioner on 28-1-2006. The petitioner addressed another letter dated 1-3-2007, to the Superintendent, with a copy to Assistant Commissioner and Deputy Commissioner, making reference to the letters and prayed for supply of a certified copy. The Superintendent, addressed two letters dated 8-5-2007 and 15-5-2007 to the petitioner stating that the order has already been delivered and in proof thereof, attached a photostat copy of a receipt, issued by postal authorities. The petitioner, thereafter, wrote a letter dated 15-5-2007, praying for supply of a certified copy of order dated 25-1-2006. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontention that there may be extra-ordinary cases where assessees may not be in a position to challenge the order of the adjudicating authority before the Commissioner (Appeals) within a period of 90 days from the date of communication of the order, we are of the view that in such extra-ordinary cases where an assessee can show extra-ordinary circumstances explaining the delay and also gross injustice done by the adjudicating authority, the assessee may invoke the writ jurisdiction of this Court. Hence, in cases where the assessees have suffered gross injustice and they could not file appeals before the Commissioner (Appeals) within a period of 90 days from the date of communication of the Order-in-Original on account of circumstances beyond their control, such assessee can invoke the powers of this Court under Article 226 of the Constitution but, of course, not as a matter of right." 13. A similar view was taken in Senior Superintendent of Post Office v. Union of India, 2011 (24) S.T.R. 168 (Gujarat). 14. We are conscious of the prohibition enacted by Section 35F of the Act against condoning delay beyond 30 days, but proceed to consider whether the dropping of similar s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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