TaxTMI 
TaxTMI 
2005 (3) TMI 152
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....llowing substantial reliefs are prayed : In the premises aforesaid, the"14. petitioner prays as under : (A) Your Lordships may be pleased to admit the present petition; (B) Your Lordships may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or a writ in the nature of mandamus or any other appropriate writ, order, direction or declaration declaring that Rule 57G(5) of the Central Excise Rules, 1944 are ultra vires the Constitution of India; (C) Your Lordships may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction quashing and....
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....les, 1944 (the Rules). 3.On 3rd February, 1997 the petitioner informed the Range Superintendent of Central Excise, Sihor, having jurisdiction over the petitioner, that the petitioner shall be maintaining separate account and inventory for manufacture and sale of Ethyl Alcohol (not-denatured) meant only for export sale and shall not avail of Modvat credit benefit on molasses, which is used as inputs in the manufacturing process. It appears that on 31st March, 1997, 3,10,498 litres of finished products meant for export were in stock. According to the petitioner out of the aforesaid goods it was constrained to sell 1,10,498 litres in the local market as special denatured spirit and the petitioner paid excise duty amounting to Rs. 2,59,641/-....
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....s principally challenged the action of the respondent authorities on the ground that sub-rule (5) of Rule 57G of the Rules is ultra vires the provision i.e., Rule 57G of the Rules (though in the prayer it is stated to be ultra vires the Constitution of India). It was submitted by Mr. Nayak that time limit of six months imposed by sub-rule (5) of Rule 57G of the Rules is arbitrary and has no rational nexus with the object sought to be achieved by Rule 57G of the Rules. That the said sub-rule stipulates that a manufacturer is not entitled to take credit after six months of the date of issue of any document specified in sub-rule (3), but according to Mr. Nayak this limitation of period of six months cannot be applied in all cases and in all ci....
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....it is apparent that the petitioner had challenged the order-in-original by exercising its right of appeal under the statute and having failed in the successive appeals, the challenge as to vires of the rule has been raised. This conduct of the petitioner indicates that the challenge is an afterthought. Be that as it may. Having heard the learned Counsel the petition is rejected on merits for the following reasons. 7.It is an accepted position that prior to insertion of Rule 57G, with special reference to sub-rule (5) powers to condone delay were available with the Assistant Commissioner by recording reasons. This very fact would indicate that legislature has taken a conscious decision while framing the present rule that such power which ....