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TMI Blog2016 (5) TMI 674X X X X Extracts X X X X X X X X Extracts X X X X ..... first appellate authority and to direct the first appellate authority to consider the matter in light of the observations made by this Court in the present order as well as after giving opportunity of hearing the appellant herein. Therefore, the absence of consideration of the case of the appellant by the first appellate authority has resulted in a failure of justice or gross miscarriage of justice, as per the view taken by the Full Bench of High Court of Gujarat in case of Panoli Intermediate (India) (P.) Ltd. (supra). Hence, the petition under Article 226 of the Constitution could be maintained and it was a fit case to exercise power under Article 226 of the Constitution to interfere with the order of the first appellate authority and the interference not being made, has resulted in failure of justice. But at the same time, even if it becomes a case for exercise of the power under Article 226 of the Constitution, the Court may ensure that no litigant or the assessee takes any undue benefit of the power under Article 226 of the Constitution. If the case is considered in favour of invoking the appellate power, the requisite condition would be to deposit 7.5% of the duty demanded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the second week of November, 2012. As per the appellant, immediately after getting to know about the order, the appellant addressed a letter dated 19/11/2012 to the Additional Commissioner of Central Excise, that the order was not received by it. Whereas, as per the respondent the Order-in-Original was dispatched on 02/05/2012 and the acknowledgement was also received. On 10/12/2012, as per the appellant, the copy of the Order-in-Original was received by it. The appellant being aggrieved by the said order carried the matter before the appellate authority and filed the appeal on 31/12/2012. On 28/02/2013, the appellant was communicated by the Superintendent of Central Excise, Appeals, Unit-I, that the appeal was required to be filed within a period of sixty days but the same has not been filed and such period can be extended up to thirty days maximum, but the present appeal is filed after more than five months from the date of the impugned order. Hence, the appeal was returned to the appellant. On 11/03/2013, the appellant was communicated that as the appeal was returned, the demand of the duty with interest and penalty was to be paid by the appellant. On 25/03/2013, the advocate of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he same are reproduced as under:- (1) Whether the period of limitation provided of 60 days, for filing an appeal under Section 35 of the Central Excise Act, 1944, could be extended only up to 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 challenged on merits? 2. As such, the background of the matters are that the petitioner of SCA No. 18542/14 had preferred appeal before the Customs, Central Excise Service Tax Appellate Tribunal (Ahmedabad), against the order passed by the Commissioner of Central Excise (Appeals), which arose from the or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2) The second question is answered in negative to the extent that the petition under Article 226 of the Constitution would not lie for the purpose of condonation of delay in filing the appeal. (3) On the third question, the answer is in affirmative, but with the clarification that- (A) The petition under Article 226 of the Constitution can be preferred for challenging the order passed by the original adjudicating authority in following circumstances that (A.1) The authority has passed the order without jurisdiction and by assuming jurisdiction which there exist none, or (A.2) Has exercised the power in excess of the jurisdiction and by overstepping or crossing the limits of jurisdiction, or (A.3) Has acted in flagrant disregard to law or rules or procedure or acted in violation of principles of natural justice where no procedure is specified. (B) Resultantly, there is failure of justice or it has resulted into gross injustice. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lectron Centum Electronics Ltd., [2014 (309) ELT 479 (Kar.)] We may record that the relevant observations made by this Court in the above referred decision are from Paragraph Nos. 9 to 14, which reads as under:- '9. The next question is whether the assessee was not liable to pay any duty when capital goods after it is being used was removed to the EOU unit. 10. Rule 3 sub-rule (4) of Cenvat Credit Rules, 2002 reads as under: (4) When inputs or capital goods, on which: CENVAT credit has been taken, are removed as such from the factory, the manufacturer of the final products shall pay an amount equal to the credit availed in respect of such inputs or capital goods and such removal shall be made under the cover of an invoice referred to in Rule 7. 11. The liability to pay duty on capital goods arises after the capital goods have been removed as such. The word as such is being the subject matter of interpretation by the various Courts. Punjab and Haryana High Court in the case of Commissioner of Central Excise, Ludhiana v. Khalsa Cotspin (P) Ltd., reported in 2011 (270) E.L.T. 349 (P H) has held as under: The assessee having validly availed cenvat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al goods reduced by 2.5 per cent for each quarter of a year or part thereof from the date of taking the Cenvat Credit. This proviso was added by a Notification No. 39/2007 dated 13.11.2007. Therefore, prior to 13.11.2007, there was no duty payable in respect of capital goods which was used before it is removed. In that view of the matter, second question of law is answered in favour of the assessee and against the Revenue.' 12. In our view, if the aforesaid two aspects, one, regarding the case law prevailing earlier and two, interpretation of the word as such and thereafter, the amendment and the decision of this Court, in case of Solectron Centum Electronics Ltd., (supra), would go to show that there was a substantial question to be considered even by the first authority. We do not propose to make any final observations on the ultimate merit of the demand, since we find that it might prejudice the case of either side. But in our considered view, if the aforesaid vital defence is not to be considered by the first appellate authority, the resultant effect would be gross miscarriage of justice. Under these circumstances, we find that it would be an appropriate case to e ..... X X X X Extracts X X X X X X X X Extracts X X X X
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