Gujarat High Court
Lathia Industrial Supplies vs The Commissioner (Appeal-I) on 20 March, 2013
Author: Akil Kureshi
Bench: Akil Kureshi
LATHIA INDUSTRIAL SUPPLIES CO PVT LTDV/STHE COMMISSIONER (APPEAL-I) C/SCA/16182/2012 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 16182 of 2012 ================================================================ LATHIA INDUSTRIAL SUPPLIES CO PVT LTD & 2....Petitioner(s) Versus THE COMMISSIONER (APPEAL-I) & 1....Respondent(s) ================================================================ Appearance: MR DEVEN PARIKH FOR NANAVATI ASSOCIATES, ADVOCATE for the Petitioner(s) No. 1 - 3 MR DARSHAN M PARIKH, ADVOCATE for the Respondent(s) No. 1 NOTICE SERVED for the Respondent(s) No. 1 NOTICE SERVED BY DS for the Respondent(s) No. 2 ================================================================ CORAM: HONOURABLE MR.JUSTICE AKIL KURESHI and HONOURABLE MS JUSTICE SONIA GOKANI Date : 20/03/2013 ORAL ORDER
(PER : HONOURABLE MR.JUSTICE AKIL KURESHI) Heard learned counsel for the parties for final disposal of the petition.
The petitioners have inter-alia challenged an order-in-original passed by the adjudicating authority on 19.10.2011 by which he directed the recovery of CENVAT credit of Rs.1,08,116/- with interest and imposed penalty of Rs. 25,000/- under the Cenvat Credit Rules, 2004. Such order was challenged before the Commissioner(Appeals). The Commissioner(Appeals) however, dismissed such appeal on the ground of delay. He was of the opinion and rightly so that appeal was presented beyond the maximum condonable period prescribed under the Central Excise Act. The petitioners therefore, filed this petition and also questioned the order of the Commissioner.
At the time of oral arguments before us learned counsel Shri Devan Parikh for the petitioners made it clear that he does not challenge the legality of the order of the Appellate Commissioner but submitted that the adjudicating authority s order requires interference. He relied on the averments made in the petition particularly, those contained in the amendment which was granted by us on 19.12.2012 to submit that petitioners had shown sufficient cause for not being able to prefer the appeal in time. Apart from other reasons, the counsel submitted that the papers were entrusted to the counsel for filing the proceedings. There was reshuffling of the tasks in the office. Learned advocate who was in-charge of this task had left the organisation and that therefore, it was not noticed that appeal was not filed promptly. On merits the counsel submitted that issue is covered in favour of the petitioner by virtue of decision of the Tribunal in case of M/s. Lathia Industries Suppliers Co. Pvt. Ltd. v. CCE, Ahmedabad dated 20.10.2011. In that view of the matter, he submitted that great hardship would be caused to the petitioners, if the issue is not permitted to be raised before any Court.
On the other hand, learned counsel Shri Darshan Parikh on behalf of the department opposed the petition contending that the Commissioner had rightly rejected the petitioners appeal since the petitioner did not prefer such appeal within the prescribed period under limitation as also within the time that the Commissioner could condone. He further submitted that question whether issue is covered by decision of the Tribunal in case of M/s. Lathia Industries Suppliers (supra) needs to be examined.
In short, he prayed that petition be dismissed.
Having thus heard learned counsel for the parties, in facts off the case, we are inclined to put the matter back at the stage of adjudicating authority. We notice that there has been some delay in the petitioners approaching the Appellate Commissioner and obviously the Commissioner could not have ignored the statutory limit beyond which he could have condoned the delay. Nevertheless, as held by the Division Bench of this Court in case of D.R. Industries and Anr. v. Union of India and Ors.
reported in 2008(3) GLH 662, such a situation would not prevent the High Court in appropriate case examine the validity of the order-in-original itself. This is however, hedged by two requirements. On that delay is otherwise well explained and the Court finds that non consideration of the issues would result into gross injustice. The Court observed as under :
19. As regards the contention that there may be extra-ordinary cases where assessees may not be in a position to challenge the order of the adjudicating authority before the Commissioner (Appeals) within a period of 90 days from the date of communication of the order, we are of the view that in such extra-ordinary cases where an assessee can show extra ordinary circumstances explaining the delay and also gross injustice done by the adjudicating authority, the assessee may invoke the writ jurisdiction of this Court. Hence, in cases where the assessees have suffered gross injustice and they could not file appeals before the Commissioner (Appeals) within a period of 90 days from the date of communication of the order-in-original on account of circumstances beyond their control, such assessees can invoke the powers of this Court under Article 226 of the Constitution but, of course, not as a matter of right.
In the present case, we record that delay was sufficiently explained. We are also prima facie of the opinion that the Tribunal s decision in case of M/s. Lathia Industries Suppliers (supra), does touch on the aspect of the matter. However, this shall have to be verified by the adjudicating authority with the assistance of the petitioner.
In that view of the matter the impugned order dated 19.10.2011 passed by the adjudicating authority is set aside. The Proceedings are placed back at the stage of adjudicating authority for fresh consideration and disposal in accordance with law after granting hearing to the petitioner. We may clarify that on the question of availment of cenvat credit involved in th is petition, we have not expressed any final opinion.
The petition is disposed of accordingly.
(AKIL KURESHI, J.) (MS SONIA GOKANI, J.) raghu Page 5 of 5