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SCA/384520/2008 7/ 7 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION NO. 3845 OF 2008
With
SPECIAL
CIVIL APPLICATION NO. 3846 OF 2008
With
SPECIAL
CIVIL APPLICATION NO. 3847 OF 2008
======================================
M/S.
ULTRATECH CEMENT LTD. - Petitioner(s)
Versus
UNION
OF INDIA & ORS. - Respondent(s)
======================================
Appearance
:
Mr. Gautam M. Gadhavi for
Petitioner(s).
None for Respondent(s) : 1 -
4.
======================================
CORAM
:
HONOURABLE
MR.JUSTICE K.A.PUJ
and
HONOURABLE
MR.JUSTICE RAJESH H.SHUKLA
Date
: 08/09/2008
COMMON
ORAL ORDER
(Per
: HONOURABLE MR.JUSTICE K.A.PUJ)
Since
a common issue is involved in all these three writ petitions, the
same are taken up for admission hearing together and are disposed of
by this common order.
2. All
the three petitions were called out in the first session and also in
the second session. The learned Advocate appearing for the petitioner
in all the three matters has not remained present in any of the two
calls.
3. The
petitioner has challenged the order of Customs, Excise and Service
Tax Appellate Tribunal, West Zonal Bench, Ahmedabad dated 30th
May, 2007 in Application No. E/COD/56/07, E/S/55607, refusing to
condone the delay of more than 800 days in preferring the appeal
against the order of the Commissioner (Appeals). Similarly, the
petitioner has challenged other two orders of the Tribunal passed in
other two appeals.
4. The
brief facts of the case are that the petitioner is inter
alia engaged in the
manufacturing of clinker and cement falling under Chapter 25 of the
Schedule to the Central Excise Tariff Act, 1985. The petitioner has
availed credit of Rs.11,38,719/- on explosives used in mines under
Rule 2(g) of the Cenvat Credit Rules, 2002. The petitioner was
issued with show cause notice proposing to deny and recover credit of
Rs.11,38,719/- under Section 11A of the Central Excise Act, 1944
availed on the explosives used in mines. The show cause notice also
proposed to impose penalty on the petitioner under Rule 13(1) of the
Cenvat Credit Rules, 2002 and proposed to recover interest from the
petitioner under Rules 12 of the Cenvat Credit Rules, 2002 read with
Section 11AB of the Central Excise Act, 1944. The petitioner filed
its reply to the show cause notice on 14.01.2003 and 19.05.2003. The
show cause notices were adjudicated by the Joint Commissioner of
Central Excise, Bhavnagar and the Joint Commissioner vide
his order dated 16.2.2004 denied the credit on explosives used in
mines and confirmed the duty demand of Rs.11,38,719/- against the
petitioner. The Joint Commissioner also imposed penalty of Rs.1 lakh
on the petitioner and also ordered recovery of interest. The Joint
Commissioner relied upon the decision of the Honourable Supreme Court
in the case of M/s. J.K. Udaipur Udyog, reported
in 2004 (171) ELT 289 (SC).
5. Being
aggrieved by the order of the Joint Commissioner dated 17.08.2004,
the petitioner filed an appeal before the Commissioner of Central
Excise (Appeals), Rajkot. During the pendency of the appeal, on
27.11.2004, the petitioner reversed the credit taken on the
explosives used in mines following the binding precedent of the
Honourable Supreme Court in the case of M/s. J.K. Udaipur Udyog
(supra). The Commissioner disposed of the appeal
filed by the petitioner on 04.02.2005 reducing the penalty from Rs.1
lakh to Rs.10,000/-. Since the subject matter of the order passed by
the Commissioner (Appeals) was already decided by the Honourable
Supreme Court in the case of M/s. J.K. Udaipur Udyog
(supra), filing of an appeal before the Central Excise and
Service Tax Appellate Tribunal (CESTAT) would have been an empty
formality and, therefore, showing due respect to the law of land, the
petitioner did not file an appeal against the order dated 04.02.2005
passed by the Commissioner (Appeals).
6.
The Honourable Supreme Court in the case of Vikram Cement Ltd,
reported in 2005 (187) ELT 145 (SC) did not agree with the
decision of the Honourable Supreme Court in the case of M/s.
J.K. Udaipur Udyog (supra) and referred the issue to
the larger Bench on 24.08.2005. The larger Bench of the Honourable
Supreme Court in the case of Vikram Cement Limited,
reported in 2006 (194) ELT 3(SC) held on 18.01.2006
that credit is admissible on inputs used in mines. The Honourable
Supreme Court overruled the decision in the case of M/s. J.K.
Udaipur Udyog (supra).
7.
Having come to know about the decision of Honourable Supreme Court
in the case of Vikram Cement Limited (supra),
the petitioner decided to file an appeal before CESTAT and
accordingly, an appeal was filed on 15.05.2007 along with stay
application and application for condonation of delay of 817 days.
The matter came up for hearing before the CESTAT on 30.05.2007 and
the petitioner’s application for condonation of delay was rejected by
the CESTAT on the ground that the petitioner had not filed the appeal
within the reasonable period. The CESTAT also held that appeal
related to short period and does not involve large amount considering
the status of the petitioner. It is this order which is under
challenge in the present petition.
8.
In the memo of petition a contention was raised that the order
passed by the CESTAT, Commissioner (Appeals) and Joint Commissioner
are ex facie perverse, illegal and wholly incorrect in law and
therefore, the same are liable to be set aside. It is further
contended that the order passed by the CESTAT dismissing the appeal
on the technical grounds of limitation had resulted in failure of
justice inasmuch as by doing so the CESTAT has made the petitioner as
victim of law on account of changing legal position. Technicalities
of law cannot prevent any Court from doing substantial justice. It
is further contended that there was sufficient cause and CESTAT ought
to have condoned the delay. Reliance was also placed on the decision
of the Andhra Pradesh High Court in the case of State of Andhra
Pradesh Vs. Venkataramana Chuduva & Muraura Merch,
reported in (1986) 159 ITR 59, wherein the decision of
the Sales Tax Tribunal was upheld and the Tribunal condoned the delay
of more than one year on the ground that the subsequent decision of
the Honourable Supreme Court constituted sufficient cause for not
filing an appeal. It was, therefore, contended that the subject
matter of the petition is covered in favour of the petitioner by the
decision of the larger Bench of the Honourable Supreme Court in the
case of Vikram Cement Limited (supra).
9. We
have perused the order of the Tribunal as well as the contentions
raised in present petition. We are of the view that the Tribunal was
justified in rejecting the application for condonation of delay as
the delay is of more than two years. The petitioner has filed the
appeal before the Tribunal only when the Honourable Supreme Court
reversed finally its earlier decision and thereafter, for one year no
action has been taken by the petitioner. It was not explained as to
why the petitioner has taken one year’s time in filing the appeal
even after the larger Bench decision of the Honourable Supreme Court
in the case of Vikram Cement Limited. While rejecting
the application filed by the petitioner for condonation of delay, the
Tribunal has considered that the petitioner has accepted the order of
the Commissioner (Appeals) and since the stake involved is very
small, the application for condonation of delay was rejected. The
decision relied upon by the petitioner in the case decided by the
Andhra Pradesh High Court has no relevance as in the present case,
there was no proper explanation of delay of one year after the
Honourable Supreme Court’s decision. Even otherwise the amount is
very small as the Appeal is filed against the penalty retained by the
Commissioner (Appeal) to the tune of Rs.10,000/- each in all the
three cases.
10.
Thus, taking over all view of the matter, we are of the view that the
Tribunal has taken a just and appropriate decision having considered
the facts and circumstances of the case and there is no infirmity in
the order passed by the Tribunal. We are, therefore, not inclined to
exercise our extraordinary writ jurisdiction under Articles 226/227
of the Constitution of India by entertaining these petitions. Hence
all the three petitions are dismissed.
[K.
A. Puj, J.]
[Rajesh
H. Shukla, J.]
kamlesh*
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