TaxTMI 
TaxTMI 
2023 (5) TMI 237
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....asteners Limited vs. CCE - 2015 (316) ELT 595 (Guj.) (b) A.R. Metallurgicals P. Limited vs. CESTAT, Chennai - 2015 (322) ELT 49 (Mad.) (c) Malladi Drugs & Pharmaceuticals Limited vs. UOI - 2015 (323) ELT 489 (Mad.) (d) Frontier Alloy Steels Limited vs. Union of India - 2017 (354) ELT 54 (All.) (e) Principal Commissioner of CE, Delhi vs. Space Telelink Limited - 2017 (355) ELT 189 (Del.) (f) CCE & Cus., Nashik vs. Nashik Forge Pvt. Limited - 2019 (368) ELT 20 (Bom). (g) Utkal Alloys Pvt. Limited vs. CCE & ST, Bhubaneshwar - 2021 (55) GSTL 473 (Tri-Kolkata) (h) Solar Chemferts Pvt. Limited vs. CCE, Thane-I -2012 (276) ELT 273 (Tri-Mumbai) (i) Final Order No. 22028/2014 passed by the Hon'ble CESTAT, South Zonal Bench, Bangalore in the matter of M/s. Shree Radha Krishna Alloys (P) Limited 3. He further submits that the appellant have paid interest for the delay in payment of duty therefore in the present case the impugned order is not sustainable. 4. Shri Tara Prakash, learned Deputy Commissioner (AR) appearing on behalf of the Revenue reiterates the findings of the impugned order. 5. We have carefully considered the submissions made by both the sides and perused....
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.... challenge to a legislation by the Parliament or the State Legislature, a delegated legislation can be struck down also on other grounds such as, that it is ultra vires the parent Act, the provisions are in conflict with the parent Act or that the same is unreasonable or wholly arbitrary or irrational. In the case of Indian Express Newspapers (Bombay) Pvt. Ltd. v. Union of India - (1985) 1 SCC 641 = 1999 (110) E.L.T. 3 (S.C.), the Supreme Court observed as under : "75. A piece of subordinate legislation does not carry the same degree of immunity which is enjoyed by a statute passed by a competent legislature. Subordinate legislation may be questioned on any of the grounds on which plenary legislation is questioned. In addition it may also be questioned on the ground that it does not conform to the statute under which it is made. It may further be questioned on the ground that it is contrary to some other statute. That is because subordinate legislation must yield to plenary legislation. It may also be questioned on the ground that it is unreasonable, unreasonable not in the sense of not being reasonable, but in the sense that it is manifestly arbitrary. In England, the Judges wou....
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.... ---". Relevant clauses of sub-section (2) of Section 37, for our purpose, are the following : "(ib) provide for the assessment and collection of duties of excise, the authorities by whom functions under this Act are to be discharged, the issue of notices requiring payment, the manner in which the duties shall be payable, and the recovery of duty not paid' (ibb) provide for charging or payment of interest in the differential amount of duty which becomes payable or refundable upon finalisation of all or any class of provisional assessments; xxxx xxxx (xiiia) provide for withdrawal of facilities or imposition of restrictions (including restrictions on utilisation of CENVAT credit) on manufacturer or exporter or suspension of registration of dealer, for dealing with evasion of duty or misuse of CENVAT credit;" 27. According to Shri Parikh, when clause (xiiia) of sub-section (2) of Section 37 circumscribes the rule making power in case of evasion of duty, the sub-ordinate legislation cannot fall back on the general provisions of sub-section (1) of Section 37 and therefore, any power to frame sub-rule (3A) of Rule 8 must be seen to have been by necessary implication taken aw....
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.... It enforces the recovery to be made thereafter in a particular manner. Very clearly, the said provision is not beyond the rule making power of the sub-ordinate legislature. 28. The second contention of the petitioner that the provision creates a hostile discrimination treating equals as unequals needs to be rejected out of hand. Sub-rule (3A) of Rule 8 recognizes two distinct and different classes of assessees. As long as an assessee abides by the time-frame provided in sub-rule (1) of Rule 8 and pays the duty monthly on 5th or 6th day of the month for the previous month, he does not incur any further liability. It is only when he not only misses the crucial date but is unable to or chooses not to pay the duty for another 30 days that sub-rule (3A) of Rule 8 would apply. In such a case, the facility of monthly payment and adjustment of Cenvat credit is taken away. The fact that two sets of assessees form different and distinct class identifiable and differentiated by intelligible differentia cannot be disputed. In one class, we have those assessees who complied with the requirements of the rules and made payment of excise duty by the due date and the other class forms of those a....
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....iod of limitation available to the department to institute proceedings, in such cases between such non-payment having been occasioned due to fraud, collusion, etc., in which case a longer period of limitation is available as against rest of the cases. Likewise, under Rule 12CC of the Central Excise Rules as it stood at the relevant time, power was given to the Government by notification to withdraw facilities from the manufacturers, registered dealers or exporters under certain circumstances having regard to the extent of evasion of duty, nature and type of offences or such other factors as has been relevant. In exercise of such powers, Notification No. 17/2006 was issued providing for withdrawal of facilities and for imposition of restrictions against who are prima facie found to be knowingly involved in any of the following : "(a) removal of goods without the cover of an invoice and without payment of duty; (b) removal of goods without declaring the correct value for payment of duty, where a portion of sale price, in excess of invoice price, is received by him or on his behalf but not accounted for in the books of account; (c) taking of CENVAT credit without the receipt of ....
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....ing such duty in cash without availing CENVAT credit. This rule thus imposes a wholly unreasonable restriction which is not commensurate with the wrong sought to be remedied. 31. This extreme hardship is not the only element of unreasonableness of this provision. It essentially prevents an assessee from availing Cenvat credit of the duty already paid and thereby suspends, if not withdraws, his right to take credit of the duty already paid to the Government. It is true that such a provision is made because of peculiar circumstances the assessee lands himself in. However, when such provision makes no distinction between a willful defaulter and the rest, we must view its reasonableness in the background of an ordinary assessee who would be hit and targeted by such a provision. As held by the Supreme Court in the case of Eicher Motors Ltd. (supra) an assessee would be entitled to take credit of input already used by the manufacturer in the final product. In the said case, the Supreme Court was dealing with Rule 57F which was introduced in the Central Excise Rules, 1944 under which credit lying unutilized in the Modvat credit account of an assessee on 16th March, 1995 would lapse. Suc....
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....nder Art. 19(2) to (6), restrictions on fundamental freedoms can be imposed only by legislation. In cases where such legislation is made and the restrictions are reasonable yet, if the concerned statute permitted the administrative authorities to exercise power or discretion while imposing restrictions in individual situations, question frequently arises whether a wrong choice is made by the Administrator for imposing restriction or whether the Administrator has not properly balanced the fundamental right and the need for the restriction or whether he has imposed the least of the restrictions or the reasonable quantum of restriction etc. In such cases, the administrative action in our country, in our view, has to be tested on the principle of 'proportionality,' just as it is done in the case of the main legislation. This, in fact, is being done by our Courts." 34. By no stretch of imagination, the restriction imposed under sub-rule (3A) of Rule 8 to the extend it requires a defaulter irrespective of its extent, nature and reason for the default to pay the excise duty without availing Cenvat credit to his account can be stated to be a reasonable restriction. It leads to a situatio....
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....ion 35 of the Central Excise Act, 1944. Such appeal had to be filed within sixty days from the date of communication of the order. The Commissioner, had power on being satisfied about the sufficient cause preventing the petitioner from preferring such appeal to condone delay upto a maximum period of 30 days. Undisputedly, the appeal was preferred after 173 days on expiry of the limitation. The Commissioner, therefore, could not have and rightly did not condone the delay. Yet again, against such order of the Commissioner, the petitioner approached the Tribunal with further delay of three years. The Tribunal was not convinced about the grounds of delay and was also of the opinion that in any case, the Commissioner's order being legal, even if the delay was condoned, no relief could be granted to the petitioner. If now we grant the relief as prayed for by the petitioner, we would be rendering the entire mechanism of appeal to the Commissioner and the further appeal to the Tribunal nugatory. The first appeal before the Commissioner comes with a rigid time-frame and cannot be presented under any circumstances beyond 30 days after the period of limitation. The Legislature having in its w....