TaxTMI 
TaxTMI 
2025 (4) TMI 1820
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..../ directions as deemed fit / proper by this Hon'ble Court in the facts and Circumstances of the case." 2. Heard learned counsel for the petitioner and learned counsel for the respondents and perused the material on record. 3. In addition to reiterating the various contentions urged in the petition and referring to the material on record, learned counsel for the petitioner submits that the Order-in-Original dated 23.09.2022 was received by the petitioner only on 27.09.2022, pursuant to which, the petitioner who was not aware of the procedure to file an appeal, entrusted the same to an Auditor who did not take necessary steps in this regard to file an appeal within the prescribed period of 60 days and extended period of 30 days as contemplated under Section 85(3A) of the Finance Act, 1994, as a result of which, the appellate authority has proceeded to dismiss the appeal as barred by limitation. It is submitted that inability and omission on the part of the petitioner was due to bonafide reasons, unavoidable circumstances and sufficient cause and therefore, the impugned order passed by the appellate authority deserves to be set aside and matter be remitted back to the concerned ....
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....he matter. 4. However, he submitted that since the impugned adjudication order suffers from illegality, the delay deserves to be condoned by this Court in exercise of the extraordinary jurisdiction of Article 226 of the Constitution of India and the respondent-Commissioner of Appeals may be directed to decide the appeal on merits. He relied upon a Division Bench decision of this Court in the case of M/s.Practice Strategic Communications India Private Limited - versus- The Commissioner of Service Tax, in WP No.13917/2016 decided on 04.07.2016, wherein this Court has held as under; "11. In view of the above referred decision of this Court, if this Court finds that the authority has passed the order without jurisdiction or has exercised the power in excess of the jurisdiction or by over-stepping or crossing the limit of jurisdiction or that there is failure of justice, or it has resulted in gross injustice, it would be a case falling under the exceptional category for exercising the power under Article 226 of the Constitution and to interfere with the order of the original authority or the appellate authority, as the case may be. In order to find out as to whether th....
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....peals. However, in view of the statutory limit on his powers, this Court exercising its extraordinary jurisdiction is of the opinion that the said delay deserves to be condoned. It is hereby condoned. 7. Moreover this Court is of the opinion that discretion ought to have been given to the Appellate Authorities under the Act to condone such delays, if caused by sufficient reason. Be that as it may. 8. In the present case, the delay of 184 days is condoned and the appeal is restored to the file of the respondent-Commissioner of Appeals, with a direction to him to decide the appeal on merits in accordance with law, subject to his satisfaction of the required pre-deposit conditions for maintaining such appeal having been satisfied by the petitioner. 9. In view of the aforesaid, the delay of 42 days in the connected WP No.44467/2017 is also condoned and the appeal is remitted back to the Commissioner of Appeals, for decision on merits by him. 10. The petitioners-assessees may appear before the said authority in the first instance on 06.01.2017 and thereafter the appeal may be decided within a period of three months. Writ Petitions are dispose....
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.... 6.1.1998. The relevant clauses of the Circular are quoted hereunder for ready reference; "5. A doubt has been raised as to whether concrete mix manufactured at site using large mechanical devices is a form of ready mix concrete. 6. The matter has been examined and concrete mix implies the conventional method of concrete production conforming to the ISI Standard 456-1978, which is produced and used at the site of construction. It is this concrete mixture, manufactured at the site of construction which is fully exempt vide Notification No. 4/97-CE dt. 1.3.97(S. No. 51). It is thus clarified that ready are mix concrete or pre-mixed concrete, by its very nature, cannot be manufactured at the site of construction and is brought from the factory of manufacturer for use in construction. 7. In view of the above and keeping in mind the distinction between Ready Mix Concrete and "Concrete Mix" it is clarified that Ready Mix Concrete is an excisable product classifiable under sub-heading 3824.20, chargeable to duty at the appropriate rate whereas "Concrete Mix" manufactured at the site of construction for use in construction at such site, is fully exempt vide Notif....
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.... be construed as unreasonable. Thereafter, proceeded to examine the challenge made to the order in original said to have been passed without jurisdiction. Placing reliance on the decision of the Hon'ble Apex Court in the case of Larsen and Toubro Ltd. and another v. Commissioner of Central Excise, Hyderabad, reported in (2015) 15 SCC 455, observed that the appellants have set up a batching plant comprising of separate silos and concrete mixer with necessary pumps, piping system and control panel to manufacture concrete mix of required grades and quality as per the contractual terms and the said manufacturing process adopted by them is not different from the process involved for manufacturing RMC. Accordingly, upheld the classification of concrete mix manufactured by the appellants at the project site as RMC, rejecting the writ petition. Being aggrieved by the same, the appellants have filed this appeal. 9. Learned counsel appearing for the appellants would submit that the intention of the Union Government has always been to grant exemption from payment of duty on the concrete mix manufactured at the construction site for use in the construction which could be evidenced fro....
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....it petition, the same deserves to be confirmed by this Court. 12. We have carefully considered the rival submissions of the learned counsel appearing for the parties and perused the record. 13. It is not in dispute that the order in original was passed by the adjudicating authority on 14.6.2019 and the writ petition was filed by the appellants before this Court in the month of September 2020. The statute prescribes the limitation period of 60 days with the next 30 days as per the proviso i.e., totally 90 days in filing the appeal before the Commissioner of Central Excise (Appeals) against the order in original under Section 35 of the Act. The appellants having not availed the said statutory remedy, challenged the order in original impugned contending that they have manufactured the concrete mix at the project site which is exempt under Circular dated 6.1.1998 and no RMC was manufactured. 14. It is true that the appellants have not availed the alternative remedy of statutory appeal available under the Act and have filed the writ petition challenging the order in original, but the Writ Court not merely dismissed the writ petition as not maintainable but fur....
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....tion of the service tax or not. We do not propose to express any further view on the said aspects in view of the order which we may pass hereinafter, but suffice it to observe that in view of the decision of the Delhi High Court, there was a strong case on merits on the part of the petitioner to be considered by the taxing authority. Unfortunately the decision of the Delhi High Court though was specifically brought to the notice of the original authority in the reply to the show cause notice, in the impugned order of the original authority, there is no reference whatsoever. Under these circumstances, we find that the case may fall in the exceptional category for exercise of the power under Article 226 of the Constitution. 12. xxxxxx 13. In view of the aforesaid, we find that directions issued hereunder shall meet the ends of justice. 14. The impugned order of the First Appellate Authority as well as the order of the Tribunal are set-aside, on condition that the petitioner deposits the amount of 7.5% of the duty demanded and further pays cost of Rs.25,000/- to the respondent, within a period of one month from the date of receipt of certified copy of the or....
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....permission to file an appeal before the appellate authority, any finding recorded on the merits of the case which indeed relates to facts warrants interference. 18. Thus, it is clear that in the absence of power vested with the appellate authority to condone the delay, in the peculiar facts and circumstances of the case, the ends of the justice would be met in permitting the appellants to file an appeal instead of adjudicating the matter on merits subject to conditions as aforesaid. 19. For the reasons aforesaid, we pass the following: ORDER (i) Writ appeal is allowed in part subject to payment of costs of Rs.1,00,000/- (Rupees One Lakh) payable by the appellants to the Chief Minister's Covid-19 Relief Fund within a period of two weeks from today. (ii) The order dated 24.5.2021 passed by the learned Single Judge in W.P.No.10766/2020 is set aside. (iii) Liberty is granted to the appellants to file an appeal before the Commissioner of Central Excise (Appeals) - first appellate authority within a period of four weeks from the date of receipt of certified copy of the order. (iv) In the event of filing such an appeal, subject to p....