HINDUSTAN COPPER LIMITED Vs. UNION OF INDIA

JUDGEMENT

(1.) THE writ petition is filed (i) for quashing the Misc. Order No. M -126/Kol/2013 dated 26.4.2013/1.5.2013, whereby Customs, Excise & Service Tax Appellate Tribunal (CESTAT) dismissed the application filed for restoration of Excise Appeal No. 532/2009 to its original file and (ii) for quashing the order dated 18.9.2012 passed in Excise Appeal No. 532/2009, in and by which CESTAT dismissed the appeal on the ground that the petitioner did not produce clearance from the Committee on Disputes (COD), nor did it produce any evidence that application for clearance from COD was pending on 17.2.2011, i.e. the date of judgment of Hon'ble Supreme Court in Electronic Corporation of India Limited ( : (2011) 3 SCC 404).

(2.) THE petitioner, Hindustan Copper Ltd., a Public Sector Undertaking, is manufacturing in its factory at Ghatshila copper and articles of copper and other by -products. In the manufacture of the said goods, the petitioner uses various inputs and capital goods and avails credit of duty on such inputs and capital goods under the MODVAT/CENVAT Scheme. Acting on intelligence information that HCL is engaged in availing irregular credit, on 6.2.2002, the Officers of DGCEI, Regional Unit) Jamshedpur, visited the factory of the petitioner and started investigation as to the credit availed on various capital goods. Thereafter a show cause notice dated 19.3.2003 was issued by the Additional Director, DGCEI, KZU, to recover an amount of Rs. 8,23,576/ - availed on various capital goods during the period 1998 -99 to January, 2002 and further to impose penalty and interest. After hearing the assessee, the Joint Commissioner passed the order on 31.10.2003 confirming the recovery of Rs. 8,23,576/ - and also imposing penalty of equal amount. Being aggrieved by the said order dated 31.10.2003, the petitioner preferred an appeal before the Commissioner (Appeals), Central Excise, Ranchi, who, by the order dated 18.1.2005, set aside the order of the Joint Commissioner dated 31.10.2003 and remanded the matter to the adjudication authority with a direction to decide the matter on merits as well as on the question of limitation.

(3.) THE petitioner preferred an appeal on 28.2.2008 before the Commissioner (Appeals). Vide order passed in Appeal No. 80/JSR/2009 dated 19.8.2009, the Commissioner (Appeals) upheld the Order -in -Original dated 20.12.2007 denying the credit availed. Being aggrieved by the order of the Commissioner (Appeals), the petitioner filed appeal on 14.10.2009 before the CESTAT, Kolkata, in Excise Appeal No. 532/2009. Vide order dated 18.9.2012, the CESTAT dismissed the appeal observing that the appellant -petitioner did not produce clearance from COD, nor produced any evidence that their application for clearance from COD was pending as on 17.2.201 l(the date of judgment of Hon'ble Supreme Court in ECIL case). The petitioner thereafter filed restoration petition on 21.11.2012 for restoration of appeal and the same was registered as MA (ROA) -460/2012 in Excise Appeal No. 532/2009. Observing that the petitioner failed to produce either the permission from COD or any proof that the application has been pending before the COD as on 17.2.2011 and following the decision of the Tribunal in the case of M/s. Burn Standard Co. Ltd. Vs. CCE -Kol -II, (vide order No. M -510/KOL/2012 dated 17.9.2012), the CESTAT dismissed the restoration application by its order dated 26.4.2013.