TaxTMI 
TaxTMI 
2022 (5) TMI 866
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.... a writ of certiorari or a writ of mandamus or any other appropriate writ, direction or order, quashing and setting aside interim order No.5/2022 dated 24.01.2022 (Annexure "L") made by the Appellate Tribunal thereby holding and declaring that appeals filed by the Revenue against the petitioners after 4 years were time-barred and not entertainable on merits; (C) Pending hearing and final disposal of the present petition, Your Lordships may be pleased to stay implementation of interim order No.5/2022 dated 24.01.2022 (Annexure "L") passed by the Appellate Tribunal thereby restraining the Appellate Tribunal from proceeding ahead with the Revenue's appeals filed against the petitioners in respect of O/O No.AHM-EXCUS-003-COM-17-18 dated 20.9.2017; (D) An ex-parte ad-interim relief in terms of para 23(C) above may kindly be granted. (E) Any other further relief that may be deemed fit in the facts and circumstances of the case may also please be granted." 2. The facts giving rise to this writ application may be summarized as under: 2.1. A show cause notice dated 29th September 2015 came to be issued to the writ applicants under Section 11A of the Ce....
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....es One Crore Ten Lakhs only] paid during the investigation should not be appropriated against the duty, interest and penalty recoverable from them. 17. Shri Sujal Shah, President (Purchase) of M/s. Shah Alloys Ltd, Santej, who is looking after the day to day business affairs of M/s. Shah Alloys Ltd., Santej, is hereby called upon to show cause to the Commissioner, Central Excise & Service Tax, Ahmedabad-III Commissionerate having his office at Custom House, 2 Floor, Opp. Old Gujarat High Court, Navrangpura, Ahmedabad-380009 [Gujarat), as to why: (1) Penalty should not be imposed upon him under Rule 15(1) of the Cenvat Credit Rules, 2004 for the aforesaid contraventions. 18. The dealers mentioned at Noticee Sr. No. 3 to 12 are hereby called upon to show cause to the Commissioner, Central Excise & Service Tax, Ahmedabad-III Commissionerate having his office at Custom House, 2nd Floor, Opp. Old Gujarat High Court, Navrangpura, Ahmedabad380009 [Gujarat], as to why (i) Penalty should not be imposed upon each of them, separately, under Rule 26(2) of 19. Central Excise Rules, 2002 for the aforesaid contraventions." 2.2 The aforesaid show cause notice wa....
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..../ end cut pieces) or S. S. Scrap (duty paid) as allegations made in show cause notice are not proved beyond doubt. 49. Since the case of wrong availment of Cenvat credit is not sustainable in the eye of law, I hold that no penalty is imposable on M/s SAL as well as on other noticees viz. Noticee No. 2 to Noticee No. 12, as proposed in the show cause notice. 50. Accordingly, I pass the following order: ORDER I hereby drop the proceedings Initiated vide show cause notice no. DGCEI/AZU/36-31/2015-16 dated 29.09.2015 issued to following noticees having no locus standi. (i) M/s Shah Alloys Ltd., Santej. (ii) Shri Sujal Shah, President (Purchase) M/s Shah Alloys Ltd., Santej (iii) M/s Madhusudan Metals, Mumbai (iv) M/s Manohar Manak Alloys Pvt. Ltd., Mumbai (v) M/s Ambika Metal Industries, Pune (vi) M/s Adarsh Stainless Pvt. Ltd., Pune (vii) M/s Nakoda Ferromet, Mumbai. (viii) M/s Shree Yesh Stainless Pvt. Ltd., Mumbai (ix) M/s Nayana Metal Corporation, Pune. (x) M/s Stainless International, Mumbai (xi) M/s Dev Alloys, Mumbai (xii) M/s Goodluck Metal C....
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....ioner Customs, Gujarat Zone Ahmedabad." 2.4 Thus, the Committee directed and authorized the Commissioner of CGST and Central Excise, Gandhinagar to apply to the Appellate Tribunal for determination of the four points stated in para 41 of the review order as above. Under Section 35E(4) of the Central Excise Act, an application pursuant to such order of authorization had to be filed under Section 35E(4) of the Central Excise Act within a period of one month from the date of communication of the order of authorization. In the present case, it appears that the above referred review order dated 20th December 2017 authorizing the 3rd respondent herein to file an application/appeal before the Appellate Tribunal was communicated to the 3rd respondent on 20th December 2017 itself, and therefore an application/appeal against the adjudication order dated 20th September 2017 was required to be filed on or before 20th January 2018. Accordingly, the 3rd respondent filed an application/appeal before the Appellate Tribunal on 16th January 2018. 2.5 The aforesaid appeal was filed only against M/s. SAL and not against any other person who was a co-noticee in the show cause no....
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....ed only one appeal against M/s. Shah Alloys Limited. 4. The hearing of the appeal is adjourned. List on 05 October, 2021. (Ramesh Nair) Member (Judicial) (Raju) Member (Technical)" 2.9 When the appeal filed by the Revenue against M/s. SAL was taken up for hearing on 5th October 2020, the departmental representative submitted that the department was in the process of filing appeals in respect of the other co-noticees. The Tribunal thought fit to grant further time to the Revenue and adjourned the hearing of the appeal filed by the Revenue against M/s. SAL. 2.10 In such circumstances referred to above, 11 new appeals with 11 applications for the condonation of delay came to be filed by the 3rd respondent before Appellate Tribunal. These appeals and condonation of delay applications were against the writ applicant No.1 herein as well as against 10 registered dealers including the writ applicant No.2 herein. 2.11 The Tribunal proceeded to hear the delay condonation applications on 10th January 2021 and allowed the same by condoning the appeal of 1433 days. The impugned order passed by the Tribunal dated 24th January 2022 reads thus: Da....
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....c Wires • 2009 (241) ELT 110 (Tri Mum) CCE, Ralgad Vs. Supreme Petrochem Ltd • 2005 (187) ELT 97 (Tri-Bang) CCE, Bangalore Vs. Sadvaldyasala P Ltd • 2002 (140) ELT 477 (Tri-Chennal) CCE, Guntur Vs. Winfield Chemicals India Ltd • 2001 (138) ELT 1320 (Tri-Del)- CCE, Bombay Vs. Packsale Industries • 2001 (138) ELT 1320 (Tri-Del) - CCE, Bombay Vs. Packsale Industries • 2020-TIOL-599-CESTAT MUMCC, VS, M V Shirkar • 1998 (104) ELT 508 (Tri) CCE, Vadodara-l Vs. Wood Polymers Ltd • M/85786-85787/2019 Dtd 04.09.2019 CCE, Mumbai Vs. Santosh Nair B. 2014 (34) STR 899 (SC) Thakker Shipping P Ltd Vs. CC, • M/10128-10133/2021 dated 08.06.2021 CCE, Ahmedabad-11 Vs. Royal Marwar Tobacco Products P Ltd 3. Shri Paresh M Dave, Learned counsel appearing for some of the respondents raised the serious objection on COD Applications. He submits that appeals now filed by the revenue are not in the nature of "Supplementary appeals" because Supplementary appeal is that which had to be filed so as to comply with procedural requirement of filing separate appeals for each of the orders i....
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....after the objection was raised during hearing on 17.09.2021 almost 3 Months were taken by the Revenue to file fresh appeals against new parties, and explanation for this delay also. there is no explanation for this delay also. 3.2 The facts of this case clearly shows that the Revenue accepted the adjudication order for all co-noticees except M/s Shah Alloys Ltd and only for this reason no appeals were filed against the Co-Noticees. The vested right of not getting dragged into further proceedings that has arisen in favour of the Co-Noticees may not be disturbed, and the appeals now filed against the co-noticees may be dismissed while dismissing the application for condonation of delay. He placed reliance on the following judgments: • Commissioner of Customs, Kandla Vs. Gautam Adani- 2014 (309) ELT 324 (Tri. Ahmd) • Commissioner vs. Bharat Bhusan Agarwal -2000(115) ELT 812 (Tri.) • Commissioner of Customs, Mumbai Vs. Chokhani Silk Mills Pvt. Ltd - 2013 (290) ELT 710 (Tri. Mum) • Commissioner, Chennal Vs. Arihant Micro Computers Pvt Ltd -2006 - (4) STR 518 (Tri.- Chennai) 4. We have carefully considered the submissi....
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....3. The writ applicants being dissatisfied with the aforesaid order passed by the Tribunal condoning the delay of 1433 days are here before this Court with the present writ application. • SUBMISSIONS ON BEHALF OF THE WRIT APPLICANTS: 4. Mr. P. M. Dave, the learned Senior Counsel appearing for the writ applicants vehemently submitted that the Tribunal committed a serious error in condoning the delay of 1433 days. 5. The pleadings in the memorandum of the writ application in the aforesaid context are as under: "The Petitioners submit that condonation of delay of 4 years allowed in favour of the Revenue by the Appellate Tribunal has been ex facie illegal and without jurisdiction in the facts of the present case. The impugned order made by the Appellate Tribunal allowing the Revenue to disturb the vested right created in the petitioners' favour for not getting dragged into further proceedings is ex-facie illegal and without jurisdiction. A writ of prohibition, or any other writ, order or direction, is therefore called for, for preventing the Respondents from proceeding ahead in appeal proceedings against the Petitioners. The appeals filed against the Petition....
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....re of certiorari will be issued by this court has been the subject-matter of numerous pronouncements of the Supreme Court. The position has been summarised by the Supreme Court in the case of Hari Vishnu Kamath v. Ahmad Ishaque reported in (S) AIR 1955 SC 233 as follows : "There was considerable argument before us as to the character and scope of the writ of certiorari and the conditions under which it could be issued. The question has been considered by this court in Parry and Co. v. Commercial Employees Association, Madras [AIR 1952 SC 179], Veerappa Pillai v. Raman and Raman Ltd. [AIR 1952 SC 192], Ebrahim Aboobakar v. Custodian General of Evacuee Property, New Delhi [AIR 1953 SC 319], and quite recently in Basappa v. Nagappa [AIR 1954 SC 440]. On these authorities, the following propositions may be taken as established : (1) Certiorari will be issued for correcting errors of jurisdiction, as when an inferior court or tribunal acts without jurisdiction or in excess of it, or fails to exercise it. (2) Certiorari will also be issued when the court or tribunal acts illegally in the exercise of its undoubted jurisdiction, as when it decides without giving ....
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.... the actual matter which the inferior tribunal has to try, that tribunal cannot, by a wrong decision with regard to it, give itself jurisidiction which it would not othewise possess unless by statute hte inferior tribunal is given power to determine conclusively questions relating to its own jurisdiction. The inferior tribunal must, indeed, decide as to the collateral fact, in the first instance; but the superior court may upon certiorari inquire into the correctness of the decision, and may quash the proceedings in the lower court if such decision is erroneous. On the other hand, if the fact in question is not collateral, but a part of the very issue which the lower court has to inquire into, certiorari will not be granted, although the lower court may have arrived at an erroneous conclusion with regard to it." 14. Dealing with the question of want of jurisdiction the law has been thus summarised in paragraph 268 of Halsburys Laws of England : "Where the inferior tribunal has acted without jurisdiction certiorari to quash the proceedings may be granted. Want of jurisdiction may arise from the nature of the subject-matter; so that the inferior tribunal had no authority ....