2019 (6) TMI 1140

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.... Order dated 06.10.2017 made by the Customs, Excise & Service Tax Appellate Tribunal, Mumbai (Tribunal)." 3] After the order-in-original dated 3rd August 2015 was made by Assistant Commissioner of Central Excise under the provisions of the Central Goods and Service Tax Act, 2017 (formerly, Central Excise Act, 1944), the petitioner instituted appeal before the Commissioner of Central Excise (Appeals). However, this appeal was instituted beyond period of 90 days, i.e., beyond the period of maximum extendable period by the Appellate Authority. Accordingly, the Appellate Authority by order dated 20th April 2017 dismissed the same as time barred. This dismissal was upheld by the Tribunal by its order dated 6th October 2017. 4] Insofar as the ....

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....roceed to answer the question   (1) Question No.1 is answered in negative by observing that the limitation provided under Section 35 of the Act cannot be condoned in filing the appeal beyond the period of 30 days as provided by the proviso nor the appeal can be filed beyond the period of 90 days. (2) The second question is answered 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....

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....e Authority or Tribunal in the event he chose to invoke such appellate remedy. On the scope of judicial review in such matters, the Full Bench has in fact followed the ruling of the Full Bench of the Gujarat High court in Panoli Intermediate (India) Pvt. Ltd. (supra). 9] Mr. Prabhakar submits that the Assistant commissioner of Central Excise failed to appreciate that the petitioner has reversed the proportionate Cenvat Credit attributable to inputs used in the exempted goods along with interests of 25% penalty before the issue of Show Cause Notice and had thus complied with the provisions of Rule 6 (1) of the Cenvat Credit Rules, 2004. He submits that once this credit was reversed on proportionate basis, it was as if the petitioner had nev....