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TMI Blog2014 (4) TMI 1031X X X X Extracts X X X X X X X X Extracts X X X X ..... impugned order dated 08.05.2013 passed by the Commissioner (Appeals), Central Excise, Customs and Service Tax, Vapi in OIO No.SRP/68/VAPI/2013-14 as well as to quash and set aside the order dated 31.03.2012 passed by the Assistant Commissioner, Customs, Central excise and Service Tax, Division II, Silvassa in OIO No.88/AC/DEM/2011-12/ Silvassa. 3. A show cause notice dated 02.03.2010 was issued by the Adjudicating Authority by which the petitioner was directed to show cause as to why: "(i) The wrongly availed Cenvat Credit amounting to Rs.412050/- as detailed in Annexure "A" appended herewith, should not be demanded and recovered from them under rule 14 of the Cenvat Credit Rules, 2004 read with proviso to Section 11A(1) of the Central E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5(4) and now Rule 15. (ii) I order that the interest at the appropriate rate is recoverable on the amount shown as above (i) from them under Rule 14 of Central Credit Rules, 2004 read with Section 11AB (now Section 11AA) of Central Excise Act, 1944. (iii) I impose the penalty of Rs.4,12,050/- (Total Rupees Four Lacs Twelve Thousand and Fifty only), on them under Rule 15 Cenvat Credit Rules, 2004, read with section 11AC of Central Excise Act, 1944. If the Cenvat Credit Amount of Rs.4,12,050/- (Total Rupees Four Lacs Twelve Thousand and Fifty only) as disallowed at (i) above, is paid by the assessee along with interest, as ordered at (ii) above, within thirty days from the date of communication of this order, the amount of penalty stands re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sultancy of the petitioner. It is submitted that as the petitioner was not aware of any further proceedings, it left the entire file at the discretion of its excise and service tax consultant. It is submitted that, however, the consultant gave the documents to his assistant for preparing and filing appeal before the Commissioner (Appeals). However, he did not make any noting of the last date of filing appeal in his diary. It is submitted that in absence of any follow up, the assistant of the consultant had not prepared the appeal memo in time. Hence, the delay was due to the mistake of the authorized representative of the petitioner (tax consultant). On merits, it is submitted by Shri Vora, learned advocate appearing on behalf of the petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the first Adjudicating Authority. 8. Shri Gaurang Bhatt, learned advocate appearing on behalf of Shri RJ Oza, learned advocate appearing on behalf of the respondent has tried to oppose the present Special Civil Application by submitting that as such no error and/or illegality has been committed by the Commissioner (Appeals) to dismiss the appeal which was clearly time barred. However, he is not in a position to dispute that as such the OIO has been passed by the first Adjudicating Authority on altogether other grounds which have not been mentioned in the show cause notice and therefore to that extent the OIO can be said to be in breach of principle of natural justice. However, he has submitted that if this Court is inclined to entertai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ering the decision of the Division Bench of this Court in the case of D.R. Industries Ltd. v. Union of India 2008 (229) ELT 24 as well as the order dated 20.03.2013 passed by the Division Bench of this Court in the case of Lathia Industrial Supplies Co. (P.) Ltd. (supra), we are of the opinion that this is a fit case to exercise the powers under Article 226 of the Constitution of India and to consider the legality and validity of the OIO. 12. Considering the show cause notice issued by the adjudicating authority as well as the OIO it appears that while passing the OIO the adjudicating authority has denied the CENVAT credit to the petitioner on various other grounds for which no show cause notice was issued and no opportunity has been given ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 31.03.2012 is hereby quashed and set aside and the matter is remanded to the First Adjudicating Authority to consider the issue afresh in accordance with law and on merits and the OIO dated 31.03.2012, more particularly para 12.4 to 12.6 of the OIO dated 31.03.2012 be treated as a show cause notice. It will be open for the petitioner to make submissions on the same and to produce the documentary evidence in support thereof within a period of six weeks from today and thereafter the Adjudicating Authority to consider the same and pass appropriate order afresh in accordance with law and on merits and considering the issue with respect to the admissibility of CENVAT credit to the petitioner in accordance with law and on merits at the earlies ..... X X X X Extracts X X X X X X X X Extracts X X X X
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