JCB INDIA LTD Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioner prays for issuance of a writ in the nature of certiorari quashing the proviso to section 35(1) of the Central Excise Act, 1944 (hereinafter referred to as the "Act"), show cause notice No. CE-20/demand/4/JCB/R-VII/04/4730 dated 3.3.2005 issued to the petitioner for recovery of Rs.34,03,468/-; order dated 25.1.2006, whereby demand of duty and penalty have been imposed and order dated 08.12.2008, whereby the petitioner's appeal has been dismissed.

(2.) Counsel for the petitioner submits that the petitioner was served 13 show cause notices relating to demand of duty on FOC Kits for various periods. The assessment orders pertaining to periods 01.04.2002 to 31.3.2003 and 01.04.2003 to 31.01.2004 were remanded by the CESTAT, on 28.10.2009, to the Adjudicating Authority, for adjudication, afresh. After remand, the Additional Commissioner has dropped proceedings not only with respect to these show cause notices, but also with respect to show cause notices for the periods 01.04.2002 to 31.03.2003, 01.04.2003 to 31.01.2004, 01.02.2008 to 31.12.2008, 01.01.2009 to 31.12.2009 and 01.01.2010 to 30.11.2010 by holding that the petitioner is not liable to pay duty on FOC kits. Appeals with respect to notices for the period 01.07.2004 to 31.12.2004, 01.01.2005 to 31.03.2005, 01.04.2005 to 30.06.2005, 01.07.2005 to 28.2.2006, 01.03.2006 to 31.08.2006, 01.09.2006 to 28.02.2007, 01.03.2007 to 31.01.2008 are pending before CESTAT.

(3.) The appeal, in the present case, pertaining to show cause notice and assessment order for the period 01.02.2004 to 30.06.2004, was dismissed by the Appellate Authority as barred by limitation. The appeal filed before the CESTAT was dismissed as withdrawn. The delay in filing the appeal was occasioned as the assessment order was never served upon the petitioner and was only made available on 09.07.2007. The appeal was filed within limitation from date of receipt of a copy of the order and, therefore, could not be dismissed as barred by time. It is further submitted that as the respondents have themselves dropped similar show cause notices, delay in filing the appeal, before the Appellate Authority, may be condoned and the matter may be remitted for adjudication afresh.