TaxTMI 
TaxTMI 
TaxTMI 
2017 (1) TMI 659
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....enior Central Government Standing Counsel for the respondent. 5. The facts of the case appear to be that the petitioner is a company providing management services. On 20th January, 2012, the Service Tax department issued show cause notice for the service tax liability from January, 2010 to September, 2011. Petitioner submitted reply to the said show cause notice on 20-12-2012 seeking to drop the demand of tax. On 3-9-2013, the petitioner addressed a letter to the Service Tax Department, informing that nothing has been intimated to the petitioner, in spite of attending of the hearing and requested the Department to grant copy of the adjudication order, if any. On 12-9-2013, the Department wrote a letter to the petitioner informing that the order dated 31-12-2012 was sent by Speed Post, which bore the rubber stamp of the petitioner - Company. On 30th September, 2013, the petitioner replied to the above letter and stated that, they or any responsible Officer of the Company are not in possession of the order and the petitioner came to know about the order only after the receipt of the letter of the Department dated 12-9-2013. On 1-10-2013, the Commissioner of Service Tax supplied....
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....r these circumstances, this being an exceptional case and in view of the contentions raised by the petitioner, there will not be any liability to pay tax, hence, this Court may exercise the power under Article 226 of the Constitution and may issue suitable direction either to remand the matter to the original authority or in the alternative the appellate authority, for examination of the matter on merits. It was submitted that, as such, there is no tax liability on the part of the petitioner in view of the above decision of the Delhi High Court. However, the petitioner shall abide by any terms and conditions which may be found appropriate by this Court. The learned Counsel relied upon the decision of this Court in the case of Phoenix Plasts Company v. The Commissioner of Central Excise (Appeal-I), reported at 2016-TIOL-905-HC-KAR-CX (taxindiaonline.com) = 2016 (344) E.L.T. 148 (Kar.). 8. Whereas, Mr. Neeralgi, learned Counsel appearing for the respondent, while supporting the order passed by the first appellate authority as well as the Tribunal submitted that if the appeal was preferred beyond the outer limit provided under Section 35, the appeal is rightly dismissed by the l....
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....ether 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 up to 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?" 2. As such, the background of the matters are that the petitioner of SCA No. 18542/14 had preferred appeal before the Customs, Central Excise & Service Tax Appellate Tribunal (Ahmedabad), against the order passed by the Commissioner of Central Excise (Appeals), which arose from the order passed by the adjudicating authority ....
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....ed in negative to the extent that the petition under Article 226 of the Constitution would not lie for the purpose of condonation of delay in filing the appeal. (3) On the third question, the answer is in affirmative, but with the clarification that- (A) The petition under Article 226 of the Constitution can be preferred for challenging the order passed by the original adjudicating authority in following circumstances that (A.1) The authority has passed the order without jurisdiction and by assuming jurisdiction which there exist none, or (A.2) Has exercised the power in excess of the jurisdiction and by overstepping or crossing the limits of jurisdiction, or (A.3) Has acted in flagrant disregard to law or rules or procedure or acted in violation of principles of natural justice where no procedure is specified. (B) Resultantly, there is failure of justice or it has resulted into gross injustice. We may also sum up by saying that the power is there even in aforesaid circumstances, but the exercise is discretionary which will be governed solely by the dictates of the judicial conscience enriched by judicial experience and practical wisdom of the j....
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....ngalore-II v. Solectron Centum Electronics Ltd. reported in [2014 (309) E.L.T. 479 (Kar.)]. We may record that the relevant observations made by this Court in the above referred decision are from Paragraph Nos. 9 to 14, which reads as under :- "9. The next question is whether the assessee was not liable to pay any duty when capital goods after it is being used was removed to the EOU unit. 10. Rule 3, sub-rule (4), of Cenvat Credit Rules, 2002 reads as under : "(4) When inputs or capital goods, on which : CENVAT credit has been taken, are removed as such from the factory, the manufacturer of the final products shall pay an amount equal to the credit availed in respect of such inputs or capital goods and such removal shall be made under the cover of an invoice referred to in Rule 7." 11. The liability to pay duty on capital goods arises after the capital goods have been removed as such. The word "as such" is being the subject matter of interpretation by the various Courts. Punjab and Haryana High Court in the case of Commissioner of Central Excise, Ludhiana v. Khalsa Cotspin (P) Ltd. reported in 2011 (270)....
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....r orders. The proviso reads thus : "If the capital goods, on which Cenvat credit has been taken, are removed after being used, the manufacturer or provider of output service shall pay an amount equal to the Cenvat credit taken on the said capital goods reduced by 2.5 per cent for each quarter of a year or part thereof from the date of taking the Cenvat credit." This proviso was added by a Notification No. 39/2007, dated 13-11-2007. Therefore, prior to 13-11-2007, there was no duty payable in respect of capital goods which was used before it is removed. In that view of the matter, second question of law is answered in favour of the assessee and against the Revenue." 12. In our view, if the aforesaid two aspects, one, regarding the case law prevailing earlier and two, interpretation of the word "as such" and thereafter, the amendment and the decision of this Court, in case of Solectron Centum Electronics Ltd. (supra), would go to show that there was a substantial question to be considered even by the first appellate authority. We do not propose to make any final observations on the ultimate merit of the demand, since we f....
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....sued :- "(1) The impugned order of the first appellate authority dated 2-4-2012 and the learned Single Judge are set aside on condition that the appellant deposits the amount of 7.5% of the duty demanded and further pays the cost of Rs. 25,000/- to the respondent, within a period of one month from the date of receipt of the certified copy of the order; (2) After the aforesaid condition is complied with, the matter shall stand restored on the file of the Additional Commissioner of Central Excise, Bangalore-I, with a further direction that he shall consider the matter in light of the observations made by this Court in the present judgment and after giving an opportunity of hearing to all concerned, including appellant herein. (3) An appropriate order shall be passed, preferably within a period of three months, from the date of compliance of the condition of deposit of the amount and payment of costs." 11. In view of the above referred decision of this Court, if this Court finds that the authority has passed the order without jurisdiction or has exercised the power in excess of the jurisdiction or by over-stepping or crossing the limit of jurisdiction or that t....