TaxTMI 
TaxTMI 
2013 (12) TMI 78
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....able products, the petitioner used a ratio of total manufacture of exempted final product and dutiable final product to the total input used to determine how much of input was being used in the manufacture of exempted product and how much of input was being used in the manufacture of duitable product. That the petitioner had been declaring the same in its books as well as its return filed with the Central Excise Department. The Department had been accepting the same. That on scrutiny of quarterly RT12 return filed by the petitioner for the period December 1997 to August 1998, it was observed by the Central Excise Officer that the petitioner had availed Modvat Credit in respect of inputs such as cullet and other waste of glass falling under Tariff Heading 7001.10 and used the same in the manufacture of exempted final products as well as duitable final products. It was also noticed that the petitioner had been reversing the Modvat Credit utilized on the total inputs on a prorata basis depending the weight of duitable and exempted final products. The petitioner had therefore, reversed a total amount of Rs.5,473/- of Modvat Credit out of total Rs.40,045/- credit availed, being the Modv....
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.... made an application under Section 69(2) of the Act, 2010 read with Rule 57CCC of the Rules, 1944 before the Commissioner, Central Excise, Kanpur praying that the option exercised by the petitioner be accepted to pay the amount in accordance with the provisions of Rules,1944 as amended by sub-section (1) of Section 69 of the Act, 1910 and since the amount has already been paid, the case be settled finally. The said application was submitted on 02/7/2010. A certificate by Chartered Accountant was also submitted by the petitioner. The petitioner also made an application for refund of the amount of Rs.10,28,815/- made by him to the Deputy Commissioner, Central Excise, Agra Division. Certain queries which were raised by the Deputy Commissioner, Central Excise, Agra as well as by the Superintendent, Central Excise were replied by the petitioner. A letter dated 07/4/2011 was received from the Assistant Commissioner, Central Excise informing the petitioner that the petitioner's application shall be processed after the outcome of the appeal filed in the CESTAT or the requirement under sub-section (2) of Section 69 of the Act, 1910 is meted out whichever is earlier. Petitioner sent a remind....
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....has been left with no remedy except to approach this Court by filing writ petition. Shri S.P. Kesarwani, learned counsel appearing for the respondents submitted that the petitioner is not entitled for the benefit of amendment as brought by Section 69 of the Act, 2010. He submits that the Rule 57CCC contemplates consideration of the application where dispute relating to adjustment of credit on inputs used is pending. He submits that no dispute was pending on the date when the Finance Act, 2010 received the assent of the President. He submits that the dispute came to an end when the Deputy Commissioner, Central Excise confirmed the demand by order dated 24/2/2000. He submits that the appeal which was filed by the petitioner against the order dated 24/2/2000 was barred by time beyond four days, hence the appeal could not have been entertained and has rightly been dismissed. He submits that the Commissioner under Section 35 of the Act, 1944 has jurisdiction to entertain the appeal only within 60 days of the order and under the proviso to Section 35 of the Act, at best he could have entertained the appeal within further 30 days and since the appeal was filed beyond 90 days, the appea....
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....the order of the adjudicating authority dated 24th February, 2000 had become final since the appeal before the Commissioner was filed beyond the time and even beyond the period up to which the Commissioner could have condoned the delay, hence no dispute can be treated to be pending to enable the consideration of application dated 2nd July, 2010 submitted by the petitioner. To recapitulate the facts again, the order of the adjudicating authority was passed on 24th February, 2000 confirming the order directing the petitioner to reverse Rs.9,28,815/- as duty payable on clearing the exempted final products. Against the said order of the adjudicating authority, the appeal was filed in the year 2004 i.e. much beyond the period of three months. The Commissioner, Central Excise (Appeals) had dismissed the appeal on 19th January, 2006 as barred by time against which appeal was filed before the CESTAT, New Delhi and was registered as Appeal No.2828 of 2009. The appeal filed before the Tribunal was also delayed but the Tribunal vide order dated 12th July, 2010 although condoned the delay in filing the appeal before the Tribunal but dismissed the appeal by confirming the order of Commission....
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.... were got served through Range Superintendent. Even if these were to be disbelieved, the Department has produced a communication from the appellant's firm signed by Shri Rajiv Kumar Paliwal seeking copies of the orders and acknowledgment that the same have been received on 13.08.2003. Under these circumstances, there could be no doubt, at least on 13.08.2003, the appellants were served with the orders of original authorities if not earlier. If the benefit of doubt is yet to be extended to the appellant, the same can relate to the period prior to 13.08.2003. Having held that the appellants have received the orders at least on 13.08.2003, it is noticed that the appeals have been filed only on 21.10.2004 before the Commissioner (Appeals). The delay in filing these appeals before the Commissioner (Appeals) is much beyond the powers of the Commissioner (Appeals) to condone the delay. 10. The submissions that the partner who received the orders was suffering from dementia and that the said partner was not entitled to receive the communication on behalf of the appellants' firm are not acceptable submissions. As submitted by the learned DR, it has been settled by the Hon'ble Supreme Cou....
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.... appeal. Section 35 of the Central Excise Act, 1944 provides appeal to the Commissioner (Appeals). Section 35-A deals with procedure in appeal and Section 35B provides for appeals to the appellate Tribunal. Section 35 of the Act is as under:- "SECTION 35. Appeals to Commissioner (Appeals).-- (1) Any person aggrieved by any decision or order passed under this Act by a Central Excise Officer, lower in rank than a Commissioner of Central Excise , may appeal to the Commissioner of Central Excise (Appeals) hereafter in this Chapter referred to as the Commissioner (Appeals) within sixty days from the date of the communication to him of such decision or order : Provided that the Commissioner (Appeals) may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of sixty days, allow it to be presented within a further period of thirty days. (1A) The Commissioner (Appeals) may, if sufficient cause is shown at any stage of hearing of an appeal, grant time, from time to time, to the parties or any of them and adjourn the hearing of the appeal for reasons to be recorded in writing: Provided that no such adjournm....
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....cised at his discretion, it is necessarily implicit in the grant that he may exercise it in such manner as the circumstances might warrant. And if the Appellate Assistant Commissioner has a discretion to excuse the delay, he has also a discretion in appropriate cases to decline to do so. We are therefore of opinion that the refusal to excuse delay is an order under section 30(2.). But the question still remains whether the view taken in Commissioner of Income-tax v. Mysore Iron and Steel Works(1) and K. K. Porbunderwalla v Commissioner of Income-tax (2) that an appeal which is filed beyond the period of limitation is, in the eye of law, no appeal, unless and until there is a condonation of delay, and that, in consequence, an order passed thereon cannot be held to be passed in appeal so as to fall within section 31 is right. Now, a right of appeal is a substantive right, and is a creature of the statute. Section 30(1) confers on the assessee a right of appeal against certain orders, and an order of assessment under section 23 is one of them. The appellant therefore had a substantive right under section 30(1) to prefer appeals against orders of assessment made by the Income-tax Of....
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....n A.I.R. 1954 SC 73, the Apex Court had laid down that appeal will be treated to be pending even though it is irregular or incompetent. Following was laid down by the Apex Court in paragraph 6 of the said judgment:- 6. It is contended that section 24 contemplates the pendency of a valid and competent appeal, but as no valid or competent appeal under the law was pending, the appellants committed no offence under section 27. We are unable to accept this contention. Section 24 on a plain and natural construction requires for its application no more than that an appeal should be pending and there is nothing in the language to justify the introduction of the qualification that it should be valid or competent. Whether the appeal is valid or competent is a question entirely for the appellate court before whom the appeal is filed to determine, and this determination is possible only after the appeal is heard, but there is nothing to prevent a party from filing an appeal which may ultimately be found to be, incompetent, e. g., when it is held to be barred by, limitation or that it does not lie before that court or is concluded by a finding of fact under section 100 of the Civil Proced....
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....could be granted in the revision petitions, according to me, is not relevant. The object of the scheme appears to be to put an end to litigation and also to see that the tax is collected from the assessee. According to me, to read the word "revision" in Section 95(c) of the Scheme as a revision which is maintainable or in which relief could be granted will be amounting to re-writing the Section. It is one of the cardinal principles of interpretation of statutes that unless there is an intention to the contrary, the words in a statute should be given their ordinary meaning. I derive support for this conclusion from the decision of the Gujarat High Court in Gufic Pharma Ltd. v. J. G. Arora [1999] 238 ITR 835. There, the Gujarat High Court held as follows (page 841) : "The mere fact that the revising authority also happens to be the designated authority, he cannot merge the two distinct jurisdictions and obligations into one and reflect one order into another. As a designated authority, he has jurisdiction to see only the existence of the conditions which make the Kar Vivad Samadhan Scheme operative in the case ..... whether the revision has merit or will be successful, is not his ....
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....oresaid cases it is settled that an appeal in order to be pending must as a matter of fact be pending and it is immaterial as to whether it has been filed beyond time or is not in the prescribed form. Further it is not to be seen as to whether the appeal has any merit or not. In case the appeal has been filed beyond the period of limitation, in the event the application for condonation of delay has been allowed it will be treated as having been properly filed." The Apex Court had occasion to consider the meaning of word "pendency" as mentioned in Section 95(1)(c) of the Finance Act, 1988 in the case of Commissioner of Income Tax, Rajkot vs. Shatrusailya Digvijaysingh Jadeja reported in (2005)7 SCC 294. In the case before the Apex Court revisions were filed beyond time along with application for condonation of delay. The contention was raised that the revision cannot be treated to be pending. It was stated that appeals under Section 246 of the Income Tax Act stood dismissed in the year 1992-93 for failure to pre-deposit self assessed tax and the revision was filed much beyond the time which was also dismissed by the Commissioner subsequently for want of sufficient cause to condon....
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....large number of cases were pending at the recovery stage and, therefore, the Government came out with the said Scheme under which it was able to unlock the frozen assets and recover the tax arrears. 14. In the case of Dr. Mrs. Renuka Delta (supra), this Court has held on interpretation of section 95(i)(c) that if the appeal or revision is pending on the date of the filing of the declaration under section 88 of the Scheme, it is not for the DA to hold that the appeal/revision was "sham", "ineffective" or "infructuous" as it has. 15. In the case of Raja Kulkarni v. The State of Bombay reported in AIR 1954 SC 73, this Court laid down that when a section contemplates pendency of an appeal, what is required for its application is that an appeal should be pending and in such a case there is no need to introduce the qualification that it should be valid or competent. Whether an appeal is valid or competent is a question entirely for the appellate court before whom the appeal is filed to decide and this determination is possible only after the appeal is heard but there is nothing to prevent a party from filing an appeal which may ultimately be found to be incompetent, e.g., when it i....
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.... of CIT vs. Shatrusailya Digvijaysingh Jadeja (supra) held the appeal to be pending. It is relevant to quote paragraphs 6, 19 and 22 which are as under:- "6. The aforesaid declaration filed by the appellant came to be rejected by the Designated Authority vide his order dated 25th February, 1999 on the ground that appeal was filed by the appellant before the Commissioner of Central Excise (Appeals) after the limitation for filing the appeal had already expired and that delay in filing the appeal was not condoned by the Commissioner of Central Excise (Appeals). 19. In support of the appeal, learned counsel for the appellant submitted that the Designated Authority erred in rejecting the declaration made under KVSS on the ground that the appeal preferred by the appellant on 2.9.1998 before the Commissioner (Appeals) was time barred and, therefore, it cannot be said that any appeal was pending under Section 95(ii)(c) of KVSS. The appeal dated 2nd September, 1998 in respect of order-in-original dated 12th November, 1997/15th May, 1998 was in time and it has been so held ultimately by the Tribunal. Therefore, the Designated Authority ought to have considered the matter. The High Cou....
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....ile doing so, the Assessing Officer held that the withdrawal of claim of loss by the petitioner could not be considered to be voluntary and bona fide. The Assessing Officer initiated penalty proceedings for concealment / furnishing of inaccurate particulars of income under Section 271 (1) (c) of the Act and levied penalty vide order 26-09-1997. The petitioner preferred Revision Application under Section 264 of Act against the Assessment Order and such Revision Application was preferred on 23-01-1999 (the date, according to the respondent, being 28-01-1999). The petitioner also preferred an application seeking condonation of delay. During the pendency of the Revision Application and the accompanying application for condonation of delay, the petitioner made a declaration under KVSS for settling the dispute, both in relation to the tax and the penalty levied. It is in this aforesaid background of facts that the Designated Authority has, while accepting the declaration insofar as penalty is concerned, rejected the declaration in relation to assessment by observing that in absence of any proceedings pending, the petitioner was not entitled to seek benefit under KVVS. On behalf of ....
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....e the CESTAT being appeal No. 2828 of 2009 which was subsequently dismissed on 12.7.2010. The appeal before the Tribunal was also barred by time. The Tribunal has power to condone the delay in filing the appeal and there is no such limitation on the power of the Tribunal that it can condone delay of only one month as is provided for Commissioner in Central Excise Act in Section 35. Section 35B(3) provides for three months limitation for filing an appeal and sub-section (5) provides for condonation of delay on sufficient cause. Section 35B(3) and 35B(5) are quoted below: SECTION 35B. Appeals to the Appellate Tribunal. --(3) Every appeal under this section shall be filed within three months from the date on which the order sought to be appealed against is communicated to the Commissioner of Central Excise , or, as the case may be, the other party preferring the appeal. (5) The Appellate Tribunal may admit an appeal or permit the filing of a memorandum of cross-objections after the expiry of the relevant period referred to in sub-section (3) or sub-section (4), if it is satisfied that there was sufficient cause for not presenting it within that period. Thus, the arguments of ....
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....lly, observed that if for any reason an appeal is dismissed on the ground of limitation and not on merits, that order would not merge with the orders passed by the first appellate authority. In that view of the matter, we are of the opinion, that the High Court was justified in rejecting the request made by the assessee for directing the revenue to state the case and also the question of law for its consideration and decision. In view of the above discussion,we do not find any merit in this appeal." There cannot be any dispute to the proposition as laid down in the above case by the apex Court but in the present case, we are not examining the question of merger. The issue to be considered is as to whether a time barred appeal can be said to be pending and pendency can be negated on the ground that it was filed beyond time. There is one more aspect of the matter which clinches the issue. The relevant words used in Rule 57CCC are " Where a dispute relating to ......... is pending". Rule 57CCC does not refer to pendency of appeal or revision rather it uses a word of wider connotation i.e. "a dispute". Word "dispute" has been defined in Concise Oxford English Dictionary as follow....