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of <h1>Court allows writ petition, sets aside assessment order & appeal dismissal. Remits matter for reconsideration.</h1> The court allowed the writ petition, setting aside the assessment order and the order dismissing the appeal as time-barred. The matter was remitted to the ... Duty demand - FOC kits sold along with JCBs machines - Held that:- respondents is unable to deny that show cause notices referred to above, relate to the same controversy, i.e., FOC Kits, and have been dropped by the adjudicating authority pursuant to a fresh adjudication ordered by the CESTAT. It is not denied that no further appeal has been filed against the order of CESTAT or the order passed by the adjudicating authority, dropping the notices - The dropping of similar show cause notices relating to similar demands for duty has led to an anomalous situation. The petitioner would be liable to pay duty and penalty with respect to the impugned notice but with respect to similar show cause notices, would not be liable to pay duty and penalty. The dropping of similar show cause notices, by the Adjudicating Authority, in our considered opinion, is sufficient to grant relief to the petitioner and direct adjudication of the show cause notice, afresh - Matter remanded back - Decided in favour of assessee. Issues Involved:1. Quashing of the proviso to Section 35(1) of the Central Excise Act, 1944.2. Validity of the show cause notice dated 3-3-2005.3. Validity of the order dated 25-1-2006 imposing duty and penalty.4. Validity of the order dated 8-12-2008 dismissing the petitioner's appeal as time-barred.5. Whether the delay in filing the appeal should be condoned.6. Application of Article 226 of the Constitution of India to grant relief.Detailed Analysis:1. Quashing of the Proviso to Section 35(1) of the Central Excise Act, 1944:The petitioner did not address arguments on the vires of Section 35(1) of the Act. Therefore, this issue was not considered in detail by the court.2. Validity of the Show Cause Notice Dated 3-3-2005:The petitioner was served with multiple show cause notices for different periods, including the one dated 3-3-2005 for the period 1-2-2004 to 30-6-2004. The petitioner argued that similar show cause notices had been dropped by the Adjudicating Authority, and this fact was not contested by the respondents.3. Validity of the Order Dated 25-1-2006 Imposing Duty and Penalty:The Assessing Authority confirmed a demand of Rs. 34,03,468/- and imposed a penalty of Rs. 44,03,468/- via the order dated 25-1-2006. The petitioner contended that they were not served with the assessment order until 9-7-2007, which led to the delay in filing the appeal.4. Validity of the Order Dated 8-12-2008 Dismissing the Petitioner's Appeal as Time-Barred:The appeal was dismissed by the Appellate Authority as barred by limitation. The court noted that the appellate authority has no jurisdiction to condone delay beyond 30 days as per Section 35 of the Act. Therefore, the dismissal was upheld as legally correct.5. Whether the Delay in Filing the Appeal Should Be Condoned:The court examined whether the delay in filing the appeal could be condoned under Article 226 of the Constitution. The court noted that the dropping of similar show cause notices by the Adjudicating Authority created an anomalous situation where the petitioner would be liable for duty and penalty for one period but not for others. This inconsistency warranted the exercise of power under Article 226 to grant relief.6. Application of Article 226 of the Constitution of India to Grant Relief:The court held that Article 226 confers power to issue writs and orders to prevent injustice or miscarriage of justice, even if the order is appealable or the appeal has been dismissed as time-barred. The court cited precedents to support this view and concluded that the dropping of similar show cause notices justified the exercise of this power.Conclusion:The writ petition was allowed. The impugned assessment order dated 25-1-2006 and the order dated 8-12-2008 were set aside. The matter was remitted to the Adjudicating Authority to decide the show cause notice dated 3-3-2005 afresh, taking into account any distinguishing features between this case and the previously decided cases. The parties were directed to appear before the Adjudicating Authority on 12-11-2013.
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