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TMI Blog2019 (3) TMI 1825X X X X Extracts X X X X X X X X Extracts X X X X ..... ation to a provision that was applicable in the present case. 2. In short, the case made out by the appellant assessee is that the adjudicating authority acted in error of jurisdiction in passing the order impugned. 3. The order of the adjudicating authority was amenable to appeal. However, the Commissioner (Appeals) could not entertain the appeal since it was filed beyond the period permitted and the additional period of 30 days as envisaged by the appellate provision. The appellate authority held that in view of the wording of the provision, the appellate authority had no jurisdiction to condone any delay beyond 30 days after the expiry of the usual period permitted to carry an appeal. Such order of the Commissioner (Appeals) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is on account of the breach of the principles of natural justice or in the erroneous exercise of jurisdiction or the like, the writ petition can be entertained, though a constitutional Court always has the discretion to not grant any relief on other grounds which are required to be recorded. In the present case, it is evident that a jurisdictional error may have been committed by the adjudicating authority that the assessee did not get a chance to address on merits because of the delay on the assessee's part to move the appeal. 7. The matter pertains to Rule 6 of the CENVAT Credit Rules, 2004. Such Rule pertains to the obligation of the manufacturer to make a distinction in maintaining accounts relating to the use of inputs in taxabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otherwise." 9. According to the appellant, the appellant calculated the 10% in terms of Rule 6(3)(b) of the said Rules of 2004 and passed it on to the purchasers of the relevant goods from the appellant; but instead of depositing such amount of 10% collected from the purchasers of the appellant's exempted goods, the appellant debited the equivalent amount from the CENVAT credit obtained by the appellant. There is no dispute that the debit of the CENVAT credit matched the amount recovered by the assessee on account of excise duty from its vendors. However, the adjudicating authority found that such a procedure could not have been adopted by the assessee as the assessee was duty-bound to make over the money component realised from its v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tals Ltd. v. Commissioner of Central Excise, Ahmedabad-I., 2006 (2004) E.L.T. 323 TLB, is not at all applicable in the instant case, as because no amount was paid to the revenue and they only neutralized the already availed cenvat credit on the inputs, used for the manufacture of exempted goods. In the instant case, I find since the assessee did not pay the amount to the Government so collected from the buyers of the exempted goods, representing duty of excise, they have to pay this amount to the Government in terms of Section 11D of the Central Excise Act, 1944...". (Emphasis in original) 11. The appellant refers to an order of a Larger Bench of the Customs, Excise and Serv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant says that though the circular of 2008 had not been issued at the time that the adjudicating authority passed its order in this case about a week earlier, all that the clarificatory circular of May 16, 2008 has done is to accept the legal position as enunciated in Unison Metals Limited. 13. The Union opposes the appeal on the ground that the adjudicating authority did not commit any error, far less any jurisdictional error, since it interpreted the law as it stood at the relevant point of time. The Union submits that the adjudicating authority noticed the legal position as enunciated in Unison Metals Limited and interpreted it not to apply to the case of the appellant since the appellant had obtained a certain amount from th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... debiting of the CENVAT credit by an equivalent amount, tantamounts to such amount having made over to the excise authorities or refunded to the excise authorities or the like. 16. It is evident that the adjudicating authority did not refer to the first Explanation to Rule 6(3) of the said Rules of 2004 while passing the relevant order. In such circumstances, the adjudicating authority committed an error of jurisdiction in failing to appreciate the extent to which the dictum in Unison Metals Limited bound the adjudicating authority. The discussion in paragraph 8 of the judgment pertaining to the then duty of 8 per cent. is the same discussion that is relevant in the context of the first Explanation to Rule 6(3) of the 2004 Rules that o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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