LATHIA INDUSTRIAL SUPPLIES CO. P. LTD Vs. COMMISSIONER

JUDGEMENT

(1.) 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 October 19, 2011 by which he directed the recovery of the 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 the 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.

(2.) At the time of oral arguments before us the 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 December 19, 2012 to submit that the 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. The learned advocate who was in-charge of this task had left the organisation and that therefore, it was not noticed that the appeal was not filed promptly. On the merits the counsel Submitted that the issue is covered in favour of the petitioner by virtue of the decision of the Tribunal in the case of Lathia Industries Suppliers Co. P. Ltd. v. CCE (dated October 20, 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.

(3.) On the other hand, the 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 the issue is covered by the decision of the Tribunal in the case of Lathia Industries Suppliers (dated October 20, 2011) needs to be examined. In short, he prayed that the petition be dismissed.