9911796707
TMI Blog2021 (9) TMI 1543X X X X Extracts X X X X X X X X Extracts X X X X ..... s may be pleased to issue a Writ of Mandamus or any other appropriate Writ, order or direction thereby directing the Commissioner of Central Excise (Appeals), Ahmedabad to hear and decide on merits the petitioner's appeal filed against OIO No. AHM CEX-003-ADCPMR-005-19-20 dated 22.8.2019 (Annexure-"G") without considering it to be barred by limitation; (C) Pending hearing and final disposal of the present petition, Your Lordships may be pleased to restraint the respondents, their servants and agents from taking any action including any coercive recovery against the petitioners pursuant to order No. AHM-EXCUS-003-APP-33-2020-21 dated 20.8.2020 (Annexure-"I") passed by the Appellate Commissioner, Ahmedabad; (D) An ex-parte ad-interim relief in terms of Para 20(C) above may kindly be granted; (E) Any other further relief that may be deemed fit in the facts and circumstances of the case may also please be granted." 2. The petitioner firm, which is manufacturing plastic goods have two factories, one at village Dediyasan and other at Nagalpur, both in Mehsana District and the administration office is at Nagalpur, from where the accounting work as well as work of administra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he has denied all the averments made and contentions raised by the petitioners in the present Petition. 6.2. It is submitted that M/s Kalp Corporation, 432-433, GIDC-II, Dediyasan, Mehsana-384002 is engaged in the manufacture of PP/HDPE Tapes, PP/HDPE Woven Fabrics, PP/HDPE Woven Sacks and PP/HDPE Waste falling under Chapter 39 of First Schedule of the Central Excise Tariff Act, 1985 and holding Central Excise Registration No. AAFFK3008HXM002 and also availing facility of Cenvat credit under Cenvat Credit Rules, 2004. The petitioner had been manufacturing goods like Polypropylene/High Density Polyethylene Tapes, PP/HDPE Fabrics and PP/HDPE Woven Sacks at their two factories one of which is located at (i) 432-433, GIDC-II, Dediyasan, Mehsana-38400 and other at (ii) 222/3-4, GIDC, Phase-I, Nagalpur, Mehsana. The petitioner had surrendered the Central Excise Registration of unit at Sr. No. 2 on 17.11.2008. 6.3. It is submitted that the finished goods viz. PP/HDPE Tapes, PP/HDPE Woven Fabrics, PP/HDPE Woven Sacks and PP/HDPE Waste falling under Chapter 39 of First Schedule of the Central. Excise Tariff Act, 1985 manufactured by the petitioner were liable for excise duty and the peti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provider of output service shall maintain proper records for the receipt, disposal, consumption and inventory of the input and capital goods in which the relevant information regarding the value, duty paid, CENVAT credit taken and utilized, the person from whom the input or capital goods have been procured is recorded and the burden of proof regarding the admissibility of the CENVAT credit shall lie upon the manufacturer or provider of output service taking such credit." 6.9. It is submitted that the burden of proof regarding the admissibility of the CENVAT credit shall lie upon the manufacturer or provider of output service taking such credit but the petitioner has failed to establish the above facts with such documentary evidences. Merely producing some sample copy of LR, it cannot be established that the goods have been received and consumed in the manufacture of final products and accounted properly. The invoices on the basis of which credit has been availed by the said petitioner do not contain all details i.e. the name and address of the consignee factory or warehouse as required as per rule 11(2) of Central Excise Rules, 2002. Moreover, they failed to satisfy that the good ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... agar vide OIO No. AHM-CEX-003-ADC-PMR-005-9-20 dated 22.08.2019 against confirmed the demand ground that the said petitioner had availed credit on the inputs invoices addressed in the name of their other unit which had surrendered their registration and thus had contravened the provisions of Rule 9 of the Cenvat Credit Rules, 2004 read with Rule 11 of Central Excise Rules, 2002 as contended hereinabove. They had neither given any copies of invoices along with ER-1 returns to the Department nor brought the facts to the knowledge of the department at any time. They had also failed to take corrective measures to amend the same in the cenvatable invoices with the satisfaction of the Jurisdictional Commissioner. Thus they had willfully suppressed the facts from the department. All the above acts of contravention on the part of the petitioner appeared with intention to evade payment of duty, as they never disclosed the factual position of availing cenvat credit on the strength of invoices which were not in the name of them. If the material facts had not been pointed out be the audit then the Government would have lost the revenue demand in the SCN. These acts on their part established th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... office i.e. M/s. Kalp Corporation, 222/3-4, GIDC-1, Nagalpur, Mehsana, Gujarat, but all the letters were returned by the postal authority with remark that "Left without Instruction". Subsequently the SCN was decided Ex-Parte by the Additional Commissioner, CGST, Gandhinagar vide OIO No. AHM-CEX-003 ADC-PMR-005-19-20 dated 22.08.2019. 6.17. It is submitted that the above referred OIO dated 22.08.2019 was served to M/s Kalp Corporation on 22.09.2019. The petitioner failed to file appeal before learned Commissioner (Appeals) against the said OIO within the period of limitation, or within the condonable period under Section 35 of the Central Excise Act on account of delay on his part alone and late serving of OIO has nothing to do with it as time limit of filing an appeal before Commissioner (Appeals) is the said order by the assessee. It is submitted that the petitioner's request for allowing this petition which will allow them an opportunity of contesting the case of merits which will lead to repetition of the procedure. 6.18. It is submitted that the said petitioner had availed credit on the inputs invoices addressed in the name of their other unit which had surrendered their regi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions and evidence on record have not been considered while passing the ex-parte order on 22.08.2019. 8. Moreover, there is also non-compliance of section 35C of the Central Excise Act in conducting and concluding de novo examination after the matter was remanded by the CESTAT and therefore, there is violation of principle of natural justice. Moreover, without entering into the merits of the matter, Mr. Dave has urged this Court that the order in original cannot be sustained for not having availed an any opportunity of hearing by the authority while adjudicating the dispute. 9. It is mandatory provision laid down under section 27C of the Act for serving any decision, order, summons or notice to the parties. In the present case, it is nowhere recorded not proved that the notice for hearing notice was sought to be served upon the petitioner firstly by tendering at the petitioner's premises or sending by registered AD Post, or Speed Post or affixing notice at any conspicuous part of the factory or office or residential premises, of the petitioner. When the notice could be served upon the petitioner, the same can be affixed under the Panchnama in the office of the adjudicating authori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to do something in a certain way, the thing must be done in that way or not at all. The other methods or mode of performance are impliedly and necessarily forbidden. The aforesaid settled legal position is based on a legal maxim "expressio unius est exclusio atlerius", meaning thereby that if a statute provides for a thing to be done in a particular way, then it has to be done in that manner and in no other manner and following other course is not permissible. 14. Reluctantly, without touching the merits of the matter, it can be held that apparently there is violation of principles of natural justice while adjudicating the case of the petitioner by the Additional Commissioner. 15. The next submission as to whether the delay in filing the appeal can be condoned by the Commissioner or not. 16. The Larger Bench of this Court formulated the following questions in the case of Panoli Intermediate (India) Pvt. Ltd. Versus Union of India, reported in 2015 (326) ELT 532 (Gujarat). "(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 upto 30 days as provided by the proviso or the delay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... condonation of delay is over, the High Court will have no jurisdiction under Article 226 of the Constitution but the exercise of such power has to be in exceptional cases where gross injustice is satisfactorily demonstrated. Otherwise, in normal circumstances, the High Court would give appropriate weightage to the statutory provisions because the things which cannot be done directly as per the statute cannot be permitted to be done indirectly in writ jurisdiction unless a grave and strong case is made out before the High Court that noninterference to the order under challenge would result into a gross injustice to the party suffering the order. 17. We are of the opinion that the circumstances and the reasons assigned by the petitioner for not filing the appeal within the stipulated period of limitation are justified and the injustice is caused to the petitioner which has been satisfactorily demonstrated. 18. Resultantly, the impugned order of Additional Commissioner dated 27.08.2019 is hereby quashed and set aside without entering into the merits of the matter and as observed in the decision in the case of Panoli Intermediate (India) Pvt. Ltd. (supra) and as observed by the Divi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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