9911796707
TMI Blog2016 (5) TMI 674X X X X Extracts X X X X X X X X Extracts X X X X ..... redit availed on two plastic moulding machines, which were leased out to M/s. Reliance Moulded Furniture. Appellant submitted a reply on 24/08/2007 to the show-cause notice and had also tendered written submissions. On 02/04/2012, the Additional Commissioner of Central Excise, Bangalore, passed an Order-in-Original No. 27/2012 whereby, the demand of cenvat credit of Rs. 31,68,000/- was confirmed and the penalty was also imposed on Rs. 31,68,000/-. According to the appellant, it was not aware about the order dated 02/04/2012 until the proprietor of the appellant was informed by the jurisdictional Range Superintendent of Central Excise, in 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 aut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of the statute and the other is the exercise of power by this Court under Article 226 of the Constitution. 8. At this stage, we may refer to the decision of Full Bench of High Court of Gujarat (wherein, one of us Jayant Patel J., was a member) in the case of Panoli Intermediate (India) (P) Ltd. v. Union of India [2015] 51 GST 720/59 taxmann.com 248 (Gujarat)(LB). In the said decision, in view of the disagreement expressed by a later Division Bench of the High Court of Gujarat, the matter was referred to the Larger Bench for considering the questions which are reproduced in the beginning of the judgment. For ready reference, the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n SCA No. 18542/14. Under the circumstances, the said SCA No. 13530/14 has been listed before the larger bench simultaneously." After considering various decisions, the questions have been answered by the Larger Bench of the High Court of Gujarat at Paragraph 31, which reads as under:- "31. We may now proceed to answer the questions (1) Question No. 1 is answered in negative by observing that the limitation provided under section 35 of the Act cannot be condoned in filing the appeal beyond the period of 30 days as provided by the proviso nor the appeal can be filed beyond the period of 90 days. (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 ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which may call for exercise of power under Article 226 of the Constitution or not. The impugned Order-in-Original lacks consideration on two basic aspects; one, is that as per the provision prevailing prior to 20/11/2012, the language was "goods as such", whereas, after amendment, the liability with regard to the amount of cenvat credit is considered and reduced to 2.5% for each closure of the year or a part thereof even if the goods are removed after being used. Further, the said aspect has been considered by the Division Bench of this Court in case of CCE v. Solectron 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 ava ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is clear, till the law was amended as on 13.11.2007 in respect of used capital goods, there was no liability to pay duty. In fact, this is evident from the fact that in Cenvat Credit Rules, 2004, the proviso was added making the position clear which was not there in the earlier orders. The proviso reads thus: "If the capital goods, on which CENVAT Credit has been taken, are removed after being used, the manufacturer or provider of output service shall pay an amount equal to the CENVAT Credit taken on the said capital 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 Lt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant deposits 7.5% of the demand of duty, plus pay the cost of Rs. 25,000/- to the respondent. 14. In view of the aforesaid observations and discussions, the following direction are issued:- (1)The impugned order of the first appellate authority dated 02/04/2012 and the learned Single Judge are set aside on condition that the appellant deposits the amount of 7.5% of the duty demanded and further pays the cost of Rs. 25,000/- to the respondent, within a period of one month from the date of receipt of the certified copy of the order; (2) After the aforesaid condition is complied with, the matter shall stand restored on the file of the Additional Commissioner of Central Excise, Bangalore - I, with a further direction that he shall consider the matter in light of the observations made by this Court in the present judgment and after giving an opportunity of hearing to all concerned, including appellant herein. (3) An appropriate order shall be passed, preferably within a period of three months, from the date of compliance of the condition of deposit of the amount and payment of costs. 15. The writ appeal is allowed to the aforesaid extent. 16. It is observed that all rights ..... X X X X Extracts X X X X X X X X Extracts X X X X
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