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TMI Blog2021 (9) TMI 1543X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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 authority. No such kind of procedure is adopted by the respondent authority. The Additional Commissioner, adjudicating authority proceeded ex-parte and mandatory provisions under section 37C is not complied with after the de-novo proceeding was initiated. The Larger Bench of this Court in the case of PANOLI INTERMEDIATE (INDIA) PVT. LTD. VERSUS UNION OF INDIA AND 2 [ 2015 (7) TMI 303 - GUJARAT HIGH COURT] has further observed that it is not possible to observe that in a case where the limitation period of preferring appeal or further period of 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 wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 administration, which includes the placing of order of inputs etc. is being carried out. It is the case of the petitioner that duty paid inputs had been received from M/s. Reliance Industries at Dediyasan involving Central Excise duty of Rs. 11,06,477/-, the address in all 48 invoices was of Nagalpur factory since the administration office was located at Nagalpur. But, in fact all 48 consignments were brought to the Dediyasan factory with endorsement in each invoice that entire quantity of inputs were unloaded at Dediyasan." 2. A Show Cause Notice was issued by the Additional Commissioner in wake of the audit objection where essentially the challenge is to the effect that the invoice of M/s. Reliance bore address of Nagalpur unit and payment was also made from the bank account of Nagalpur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 petitioner was availing cenvat credit on the inputs like plastic granules used for manufacture of their said finished goods. 6.4. It is submitted that the period of dispute is June 2008 to February 2011 and is pertaining to their unit located at 432-433, GIDC-II, Dediyasan, Mehsana-38400. 6.5. It is submitted that petitioner had availed Cenvat Credit of Rs. 11,06,477/- during the period from June, 2008 to February 2011 on the strength of Cenvatable invoices issued by M/s Reliance Industries Limited, which were in the name of M/s. Kalp Corporation, 222/3-4, GIDC, Phase-1, Nagalpur, Mehsana (i.e. the another unit of the said Noticee) who had surrendered the Central Excise Registration on 17.11.2008. It was also observed that ledger of M/s Reliance Industries Limited, that payment of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 goods covered by the said invoices have been received and accounted for in their books of the account. The petitioner availed cenvat credit for about 3 years by making endorsement on the relevant invoices. Even after surrendering the registration of M/s Kalp Corporation, Nagalpur, Mehsana on 17.11.2008, they had continued the such process which shows their mala fide intention to avail cenvat credit. 6.10. It is submitted that Being aggrieved by the OIA No. AHM-EXUS-003-APP/100-14-15 dated 18.11.2014 Commissioner dated 18.11.2014 passed by the (Appeal-I), Central Excise, Ahmedabad, Department filed appeal before CESTAT, Ahmedabad on the ground that the said petitioner had availed credit on the inputs invoices addressed in the name of their other unit which had surrendered their r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 their mala fide intention to avail inadmissible cenvat credit of duty without intimating to the department. 6.13. It is submitted that further the above referred OIO dated 22.08.2019 was served to M/s Kalp Corporation on 22.09.2019. The applicant failed to file appeal before Hon'ble 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 receipt of said order by the assessee. 6.14. It is submitted that The OIO No. AHM-CEX 003-ADC PMR 005 19-20 dated 22.08.2019 was issued in compliance to CESTAT order in Departmental's ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore 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 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 Assistant 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 authority. No such kind of procedure is adopted by the respondent authority. 10. The provisions under section 37 are absolute and there has been any discretion vested to relax this provision to any authority or to allow hearing ex-parte without giving an opportunity of being heard. 11. Thus, the Additional Commissioner, adjudicating authority proceeded ex-parte and mandatory provisions under section 37C is not complied with after the de-novo proceeding was initiated. 12. As observed in the case of Regent Overseas Pvt. Ltd. Vs. Union of India, reported in 2017(6) GSLT 15 (Guj.), in para 8 has observed and held as under :- 8. Thus, under clause (a) of sub-section (1) of Section 37C of the Act, in case of service of notice by speed post, the same has to be with proof of deliv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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 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? The aforesaid first two questions are answered by the Larger Bench in negative that the limitation provided ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l 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 Division Bench of this Court in the case of Yantraman Automac Pvt Ltd. in Civil Application No. 90 of 2013 and in the case of P.S.L. Limited in Civil Application No. 748 of 2013, we deem it fit to condone the delay invoking powers under Article 226 of the Constitution of India, and remand the matter to the Commissioner (Appeals), who shall decide the proceedings on remand, after giving fullest opportunity to the petitioner, without in any way being influenced by this order and on merits. None of the findings and observations recorded in this order would in any manner influence or prejudice either side. Parties are at liberty to raise their contentions before the Commissioner (Appeals). 19. The Court has chosen not to enter into the merits of the matter and all con ..... X X X X Extracts X X X X X X X X Extracts X X X X
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