Custom, Excise & Service Tax Tribunal
Shri Ahimsa Mines And Minerals Ltd vs Jaipur I on 23 June, 2021
1
Excise Appeal No. 50317 of 2019-SM
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
NEW DELHI.
PRINCIPAL BENCH - COURT NO. II
Excise Appeal No. 50317 of 2019-SM
(Arising out of order-in-appeal No. 401(SM)CE/JPR/2018 dated 18.09.2018 passed
by the Commissioner (Appeals), Central Excise & Central Goods & Service Tax,
Jaipur).
M/s Shri Ahimsa Mines and Minerals Ltd., Appellant
202, UPASANA Apartment
E-14, Bihari Marg, Banipark
Jaipur-302016.
VERSUS
Commissioner, Central Excise and Respondent
Central Goods and Service Tax, NCR Building, Statue Circle C-Scheme, Jaipur-302005.
APPEARANCE:
None for the appellant Shri Yashvir Singh, Authorised Representative for the respondent CORAM:
HON'BLE MR. ANIL CHOUDHARY, MEMBER (JUDICIAL) FINAL ORDER NO. 51591/2021 DATE OF HEARING: 12.03.2021 DATE OF DECISION: 23.06.2021 ANIL CHOUDHARY:
The appellant is in appeal against dismissal of their appeal by the Commissioner (Appeals) on the ground of limitation.
2. Brief facts are that the appellant who is registered with the Department and are engaged in manufacture and export had deposited excess cost recovery charges (at instance of Department) during the period 1999 to 2004. In view of the instructions of Board vide letter No. A/11018/8/91.Ad.-IV dated 01.04.1991, it appeared 2 Excise Appeal No. 50317 of 2019-SM to appellant that they have been subjected to excess cost recovery charges and are entitled to refund. Appellant was also allowed sharing of cost recovery charges by the jurisdictional Commissioner vide Order No. C. No. V(16) MISP/19/2000 dated 21.12.2000 for the financial year 2000-01 and onwards. The appellant filed a refund application for Rs.1,59,710/- on 05.05.2005 before the Assistant Commissioner. The Assistant Commissioner vide Order-in-original dated 05.10.2005 determined the amount refundable at Rs.1,11,370.33 and adjusted the said refund amount against cost recovery charges of Rs.1,00,861/- for the year 2004-05, although there was no amount due towards cost recovery charges for the year 2004-05, as the appellant had opted for MOT charges and had paid the same for the said year as per Board Circular No. M.S.(DR)36/2004-Cus. dated 24.05.2004. The appellant had requested for a speaking order which was declined on the ground that adjustment of cost recovery charges is administrative in nature.
3. Against the said order dated 05.10.2005 appellant filed appeal before the Commissioner (Appeals) claiming refund of Rs.1,59,710/- which was allowed vide order-in-appeal dated 24.04.2006.
4. The appellant approached the Assistant Commissioner for giving the appeal effect of Order-in-appeal dated 24.04.2006. However, the Assistant Commissioner in his Order-in-original dated 16.11.2006, without giving opportunity of personal hearing, 3 Excise Appeal No. 50317 of 2019-SM sanctioned the lower amount of Rs.1,11,370/-, further directing adjustment of such amount out of demand of Rs.9,36,367/- arising out of Order-in-original dated 30.11.2005 (on the said date this demand had been stayed by this Tribunal vide Stay Order No.1229/2006-Ex dated 01.11.2006).
5. The appellant filed application for review on 09.01.2007 before the Assistant Commissioner on the ground that Order-in- appeal dated 24.04.2006 passed by the Commissioner (Appeals) cannot be readjudicated by the Assistant Commissioner. However, by communication dated 18.01.2007 the Assistant Commissioner declined to modify the Order-in-original dated 16.11.2006.
6. Being aggrieved, the appellant filed D.B. Civil Writ Petition No. 9275/2007 against orders of Assistant Commissioner dated 16.11.2006 and 18.01.2007 before the Hon'ble Rajasthan High Court.
7. During pendency of the Writ Petition, this Tribunal vide Final Order No. A/50529/2015-Ex.DB allowed the appeal and set aside the Order-in-Original No. 110/2005 dated 30.11.2005 thereby setting aside the demand of Rs.9,36,367/-.
8. Thereafter the appellant filed Miscellaneous application before the Rajasthan High Court (in the writ application) to bring order of the Tribunal on record. The Hon'ble Rajasthan High Court vide its Final Order dated 04.05.2017 directed the Department to 4 Excise Appeal No. 50317 of 2019-SM decide the application dated 09.01.2007 (which was filed before the Assistant Commissioner and disposed by his order dated 18.01.2007). The Hon'ble High Court also granted liberty to apply for revival of writ in case of difficulty.
9. The appellant submitted representation dated 17.05.2017 before the Deputy Commissioner alongwith copy of Hon'ble High Court dated 04.05.2017, praying for refund of the amount with interest in terms of Section 35FF read with Section 11BB of the Act.
10. The Deputy Commissioner without giving opportunity of personal hearing to the appellant passed order dated 19.06.2017 granting the truncated refund of Rs. 1,11,370/-. Further, no order was passed relating to payment of interest claimed.
11. Being aggrieved by order dated 19.06.2017 passed by the Deputy Commissioner, the appellant filed miscellaneous application No. 524/2017, in the disposed writ application, before the Hon'ble High Court on 13.09.2017. The Hon'ble High Court by its order dated 06.10.2017 disposed of the Miscellaneous application in writ application, observing that it is of the opinion that the appellant should challenge the subsequent order (dated 19.06.2017) in appeal remedy, which was passed pursuant to the proceedings which were pending before the Authority. No fruitful purpose would be served by reviving the writ application. The Hon'ble High Court further observed that the period which have been taken while 5 Excise Appeal No. 50317 of 2019-SM considering the review application, will be considered on filing delay condonation application, by the Appellate Authority.
12. In view of the order & indulgence of the Hon'ble High Court dated 06.10.2017, the appellant filed the appeal before the Commissioner (Appeals) which have been dismissed on the ground of limitation, by impugned order dated 28.11.2017.
13. The appellant have submitted aforementioned facts by way of written submissions.
14. As per the ground of appeal the appellant have urged that the Commissioner (Appeals) has failed to appreciate the facts and circumstances and in view of the indulgence granted by Hon'ble High Court, should have heard the appeal on merits and decided the same. Dismissing of appeal on the ground of limitation has resulted in gross miscarriage of justice, inspite of the binding direction of Hon'ble High Court. The appellant had approached the Hon'ble High Court in the miscellaneous application, within the period of limitation for appeal (plus the condonable period of ninety days). Thus, the whole period from the date of order-in-original dated 19.06.2017 till the date of miscellaneous order dated 06.10.2017 should have been excluded in view of the directions of Hon'ble High Court, read with Section 14 and 18 of the Limitation Act. The appellant was bonafidely pursuing the remedy before the Hon'ble High Court in view of the directions of the Hon'ble High Court dated 04.05.2017. Accordingly, it has been prayed that the impugned order may be set 6 Excise Appeal No. 50317 of 2019-SM aside with a direction to hear and dispose of the appeal on merits by the Commissioner (Appeals).
15. Learned Authorised Representative appearing for the Revenue Shri Y. Singh have relied on the impugned order and further urged that the Hon'ble High Court granted condonation of time only for the period from the date of filing of review application on 13.09.2017 till dismissal of the review application on 06.10.2017.
16. Having considered the rival contentions, I find that the order of Hon'ble High Court dated 06.10.2017 has to be read with the earlier Final Order of the Hon'ble High Court dated 04.05.2017. The Hon'ble High Court granted liberty to the appellant to apply for review or restoration of the writ application in case of difficulty, while disposing of the writ application on 04.05.2017. Thereafter, when the appellant approached the Hon'ble High Court in review on Miscellaneous application for revival of the application, the Hon'ble High Court directed the appellant to pursue the appellate remedy in view of the subsequent Order-in-original dated 19.06.2017, (allowing truncated amount of refund). Thus, in the facts and circumstances of the present case, limitation has to be computed on and from 06.10.2017 (plus the time taken in obtaining certified copy of the miscellaneous order). Accordingly, I hold that the appeal filed before the Commissioner (Appeals) was within time. Therefore, this appeal is allowed by way of remand to the Commissioner (Appeals) with the direction to hear the appeal on merits and pass a reasoned 7 Excise Appeal No. 50317 of 2019-SM order after considering the earlier Order-in-Appeal dated 24.04.2006, as well as the Final Order of this Tribunal dated 30.11.2005 and the other orders. The Commissioner (Appeals) shall also consider the case of insubordination by the lower authority after passing of the Order-in-Appeal by the Commissioner (Appeals) dated 24.04.2006.
17. Whatever amount is found refundable to the appellant shall be refunded forthwith within a period of sixty days from the order of the Commissioner (Appeals) alongwith interest @ 12% under Section 35FF from the date of deposit till the date of refund as held by this Tribunal in the case of Parle Agro Pvt. Limited vide Final Order No. 70180-70181/2021 dated 25.05.2021 (Delhi D.B.).
18. The appellant is also granted liberty to appear before the Commissioner (Appeals) and seek opportunity of hearing, alongwith a copy of this order.
(Pronounced on 23.06.2021).
(Anil Choudhary) Member (Judicial) Pant