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TMI Blog2015 (10) TMI 1297X X X X Extracts X X X X X X X X Extracts X X X X ..... the delay beyond a period of thirty days as provided by the proviso to section 35 of the Act nor can the appeal be filed beyond a period of ninety days. Under the circumstances, the impugned orders passed by the Commissioner (Appeals) and the Tribunal do not suffer from any legal infirmity warranting interference. Perusal of the impugned order-in-original reveals that the petitioner had raised a contention as regards the storage tanks being capital goods and the M.S. Angles, Channels, H.R. Plates, bars etc. being used for repair and maintenance thereof and alternatively had submitted that in case H.R. Plates, Angles, Channels and bars are not considered to be capital goods, cenvat credit is admissible as input credit instead of capital ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 13 passed in the case of the petitioner. 2. The facts stated briefly are that a show-cause notice dated 25th April, 2012 came to be issued against the petitioner to show cause as to why cenvat credit wrongly availed by them on items viz. M.S. Angles, Channels, H.R. Plates, bars etc. as capital goods total amounting to ₹ 18,85,399/- during the period from February, 2008 to April, 2011 as detailed therein, should not be disallowed and recovered from them under rule 14 of the Cenvat Credit Rules, 2004 read with the proviso to erstwhile section 11A(1) of the Central Excise Act, 1944 (hereinafter referred to as the Act ) together with interest and penalty. The show-cause notice culminated into the impugned Order-in-Original dated 30th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Central Excise Act, 1944, could be extended only upto 30 days as provided by the proviso or the delay beyond the period of 90 days could also be condoned in filing an appeal (2.) Where a statutory remedy or appeal is provided under Section 35 of the Central Excise Act, 1944 and the delay cannot be condoned under Section 35 beyond the period of 90 days, then whether Writ Petition under Article 226 of the Constitution of India would lie for the purpose of condoning the delay in filing the appeal (3.) When if the statutory remedy or appeal under section 35 is barred by the law of limitation whether in a Writ Petition under Article 226 of the Constitution of India, the order passed by the original adjudicating authority could be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... We may also sum up by saying that the power is there even in aforesaid circumstances, but the exercise is discretionary which will be governed solely by the dictates of the judicial conscience enriched by judicial experience and practical wisdom of the judge. 32. All the three questions are answered accordingly. 33. The matters now shall be placed before the appropriate bench for further consideration in accordance with law. Consequently, the matter has again been placed before this bench for further consideration in accordance with law. 5. Mr. Dhaval Shah, learned advocate for the petitioner submitted that while it is true that the Full Bench has held that there is no power to condone the delay beyond a period of ninety ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imited, 2011 (271) E.L.T. 360 (Kar.), as well as the decision of the Madras High Court in the case of Commissioner of Central Excise, Salem v. Madras Aluminium Company Limited, 2015 (316) E.L.T. 59 (Mad.), to submit that the courts have held that when a tank in factory premises is used for storing by-products which are subsequently sold as finished products, cenvat credit on these items cannot be denied on the ground that storage tank was immovable property embedded to earth and capital goods. It was submitted that the above decisions would be squarely applicable to the facts of the present case and hence, gross injustice would be caused to the petitioner who is otherwise entitled to the benefit of input credit in respect of the above refer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, there was a delay of 118 days in preferring the appeal. The Commissioner (Appeals) has dismissed the appeal on the ground that he had no powers to condone the delay beyond the statutory period prescribed in section 35 of the Act. The Tribunal has dismissed the appeal preferred by the petitioner against the order passed by the Commissioner (Appeals) by concurring with the view expressed by the Commissioner (Appeals). Insofar as condonation of the delay caused in filing the appeal by the Commissioner (Appeals) is concerned, the Full Bench of this court had concluded the issue by holding that there is no power to condone the delay beyond a period of thirty days as provided by the proviso to section 35 of the Act nor can the appeal be filed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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