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TaxTMI 
TaxTMI 
TaxTMI 
2021 (3) TMI 568
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....on the ground that the learned Tribunal was not justified in rejecting the application for restoration, without appreciating the facts of the case as also the submissions made by the petitioner while considering that recalling of the order would amount to review of its earlier order. A ground has also been raised that the learned Tribunal has not considered the principle laid down in the cases of (i) J.K. Synthetics Ltd. v. Collector, 1996 (86) ELT 472 (S.C.) (ii) Viral Laminates Pvt. Ltd. v. Union of India, 1998 (100) ELT 335 (Guj.) and (iii) Shivam Casting v. Union of India, 2017 (351) ELT 131 (Guj.). 2. The petitioner herein is engaged in the business of manufacture of brass / copper articles classifiable under Chapter 74 of the Schedule to the Central Excise Tariff Act, 1985. It is the case of the petitioner that on 10.02.2006 the Officers of the Directorate General of Central Excise Intelligence (DGCEI) visited the factory premises of the petitioner and impounded certain documents. It was alleged that the petitioner had clandestinely cleared excisable goods and accordingly, was asked to deposit the Central Excise Duty to the tune of Rs. 5,94,953/- leviable on the articles of ....
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....dings initiated before the Assistant Commissioner, Central Excise pursuant to the refund claim filed by the petitioner, the ground was raised that the limitation prescribed under the Act would be applicable to the Duty paid and that in the present case since the amount paid could not be treated as "duty", as it was as "pre- deposit" in terms of the provisions of Section 35F of the Act, limitation would not be applicable. However, the Assistant Commissioner, Central Excise did not consider the above aspect of the case and issued the show- cause Notice dated 29.04.2013, by which it called upon the petitioner to show cause as to why the refund claim should not be rejected on the ground of limitation as provided under Section 11B of the Act, as the same was filed beyond the period of One Year from the date of the judgment and order of the Tribunal. In response to such notice, the petitioner filed his reply dated 20.05.2013. However, by order dated 09.07.2013 passed by the Deputy Commissioner, Central Excise, the refund claim made by the petitioner came to be rejected on the ground of limitation. 6. Aggrieved by the order passed by the Deputy Commissioner, Central Excise dated 09.07.20....
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....f its earlier order, which power, the learned Tribunal is not vested with under the provisions of the Act. 9. Mr. Paresh Sheth, learned advocate for the petitioner, reiterated the facts of the case and referred to the relevant observations made by the authorities concerned in the impugned order. It was submitted that there is an absolute misinterpretation of the provisions of the Act by the authorities below as also by the learned Tribunal. Pre-deposit of the amount of duty does not amount to acceptance and payment of duty thereof and therefore, such payment would not be hit by the rigors of limitation, as provided under Section 11B of the Act. It was submitted that right from the decision rendered by the Apex Court in the case of Mafatlal Industries v. Union of India, 1997 (89) ELT 247 (S.C.), which was followed in several other cases and also in Union of India v. Suvidhe Ltd., 1997 (94) ELT 159 (SC), it has been held that in case any amount is deposited during the pendency of adjudication proceedings or investigation, then such amount would be in the nature of deposit under protest and therefore, the principles of unjust enrichment would not apply. 9.1 It was submitted by learn....
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...., prayed that the present petition may be allowed by setting aside the impugned orders passed by the learned Tribunal and by restraining the respondent-Department from taking any action pursuant to the impugned orders passed by the learned Tribunal. 10. Mr. Parth Divyeshwar, learned Central Government Standing Counsel appearing for the respondents, submitted that the respondent authorities as also the learned Tribunal have rightly held that the claim of the petitioner was time barred and therefore, could not be entertained. He submitted that no explanation has come forth from the petitioner regarding the delay in filing the refund application. By referring to the unreported decision rendered by the Coordinate Bench of this Court in the case of Ajni Interiors v. Union of India and others in Special Civil Application No.10435 of 2018 dated 04.09.2019, it was submitted that the law on the issue is settled and it has also been affirmed by the Hon'ble Supreme Court in Special Leave Petition (Civil) Diary No(s).3952 of 2020 on 20.02.2020. 11. Having heard the learned counsel for the parties, it is evident that the learned Tribunal has rejected Application No. E/ROA/10804/2017 filed....
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....he context of the provisions of the Code of Civil Procedure, 1908, it would be relevant to refer to a decision of the Apex Court in the case of Ghanshyam Dass Gupta v. Makhan Lal, (2012) 8 SCC 745 and more particularly, on the observations made in paragraph-8, which reads thus:- "Prior to 1976, conflicting views were expressed by different High Courts in the country as to the purport and meaning of sub-rule (1) of Rule 17 of Order 41 CPC. Some High Courts had taken the view that it was open to the appellate court to consider the appeal on merits, even though there was no appearance on behalf of the appellant at the time of hearing. Some High Courts had taken the view that the High Court cannot decide the matter on merits, but could only dismiss the appeal for appellant's default. Conflicting views raised by the various High Courts gave rise to more litigation. The Legislature, therefore, in its wisdom, felt that it should clarify the position beyond doubt. Consequently, Explanation to sub-rule (1) of Rule 17 of Order 41 CPC was added by Act 104 of 1976, making it explicit that nothing in sub- rule (1) of Rule 17 of Order 41 CPC should be construed as empowering the appellate ....
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....ent when the order was passed and if it is established to the satisfaction of the authority that sufficient cause did exist, then such ex-parte order has to be set aside and the matter has to be restored on file for its adjudication afresh on merits. The Hon'ble Apex Court expressed its view in the following terms:- "Rule 21 of CEGAT (Procedure) Rules, 1982 does not expressly state that an order on an appeal heard and disposed of ex parte can be set aside on sufficient cause for the absence of the respondent being shown does not mean that CEGAT has no power to do so. If, in a given case, it is established that the respondent was unable to appear before it for no fault of his own, the ends of justice would clearly require that the ex parte order against him should be set aside. Not to do so on the ground of lack of power would be manifest injustice. Quite apart from the inherent power that every tribunal and court constituted to do justice has in this respect, CEGAT is clothed with express power under Rule 41 to make such order as is necessary to secure the ends of justice. CEGAT has, therefore, the power to set aside an order passed ex parte against the respondent before it i....