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2002 DIGILAW 369 (MP)

Siddhartha Tubes Ltd. v. CEGAT

2002-04-01

A.M.SAPRE

body2002
Judgment ( 1. ) THIS writ is under Article 227 of Constitution of India. In this writ challenge is to an order dated 7-9-2002 (sic) (Annexure P/1) passed by Customs, Excise and Gold (Control) Appellate Tribunal, New Delhi (for short CEGAT) whereby the Petitioners second appeal arising out of order dated 30-11-2000 passed by Commissioner (Appeals) which again arise out of an order dated 30-9-1998 passed by Assistant Commissioner (Adjudicating Authority) has been dismissed. ( 2. ) IN substance the dispute before the Adjudicating Authority was in relation to claiming of Modvat credit by the petitioner on certain items amounting to Rs. 12,64,912/- and on Rs. 4,88,636/- the contention of petitioner was that they have rightly claimed Modvat credit on the items (inputs) whereas the contention of the department was to the contrary. According to Departmental Authorities, the petitioner was not entitled to avail of the benefit of Modvat credit and hence they, having claimed wrongly, are entitled to pay the said sum and also the penalty. It is this issue which eventually was decided by the Assistant Commissioner (Adjudicating Authority) by his order dated 30-9-1998 against the petitioner. It was inter alia held that Petitioner was not entitled to avail of the Modvat credit of Rs. 12,64,912/- and Rs. 4,88,636/ -. It was accordingly disallowed. The Adjudicating Authority also imposed a penalty of Rs. 1,25,000/- and Rs. 50,000/- - Rs. 1,75,000/ -. This order was challenged in appeal by the petitioner. It was dismissed by Commissioner of Appeals, by his order dated 30-11-2000/5-12-2000. Petitioner then filed Second Appeal to Tribunal which too was dismissed by impugned order giving rise to filing of this writ. ( 3. ) THE Respondent (departmental authorities of Excise) has defended the impugned orders and prayed for their upholding. ( 4. ) HEARD Shri G. M. Chafekar, learned Senior Counsel, assisted by Smt. Pandit and Shri B. C. Neema, for the Respondents. ( 5. ) WHILE attacking the impugned order, L/c for the petitioner made basically one rather main submission. According to him, the learned Members of the Tribunal decided the appeal finally without affording the petitioner an opportunity to address the Tribunal on merits. ( 5. ) WHILE attacking the impugned order, L/c for the petitioner made basically one rather main submission. According to him, the learned Members of the Tribunal decided the appeal finally without affording the petitioner an opportunity to address the Tribunal on merits. It was his submission that the appeal before the Tribunal was listed for hearing on stay application made by the petitioner in which the prayer was made for relieving the petitioner from depositing the demand amount as a condition precedent for hearing the appeal on merits. It was contended that instead of passing any orders on the stay application either granting or rejecting, the learned Members of the Tribunal proceeded to decide the appeal itself and that too on merits. A fact which according to L/c came to the knowledge of the petitioner when the decision was pronounced almost after about four months of the date of hearing stay application. L/c, therefore, submitted that when the appeal was listed for passing orders on stay, when the appeal is shown to be listed for hearing on stay in the cause list, when the lawyer who appeared for the petitioner submitted an affidavit to support these facts, when the respondents in their return do not in so many words, deny these facts, then in such event, the impugned order deserves to be set aside and the appeal be remanded for hearing on merits. 4. L/c for the Respondent opposed these submissions and urged for upholding of the impugned order. L/c urged that the order impugned is passed on merits as is clear from its mere reading and hence it cannot be set aside on the ground urged by L/c for the petitioner but can be examined only on the merits. L/c urged that there is thus no case made out for either setting aside of the impugned order or remand of the case by the Tribunal on merits because full opportunity was extended to petitioner in appeal. 5. Having heard the L/c for the parties and having perused the record of the case, I find no merit in the main submission urged by L/c for the petitioner while assailing the impugned order. ( 6. ) IN my considered view, the grievance raised by the petitioner must be or/and should have been raised by the petitioner first before the Tribunal itself rather than in writ. ( 6. ) IN my considered view, the grievance raised by the petitioner must be or/and should have been raised by the petitioner first before the Tribunal itself rather than in writ. In other words, it was a ground which ought to have been brought to the notice of Tribunal and not in writ for challenging or recalling of the order impugned herein. In my opinion, it is for the Tribunal to decide as to whether complaint made by the petitioner (who was appellant before the Tribunal) is factually proper or not and is made out or not and whether if made out, is a ground to recall the order. What transpired while hearing the appeal before the Tribunal can only be examined or/and should be examined by the Tribunal itself with reference to the record of the case. I do not agree to the submission of L/c for the petitioner when he urged that even the writ Court can go into this aspect once the facts are admitted. Firstly, what transpired in Tribunal while hearing the appeal is within the knowledge of Tribunal and has to be examined in the light of record of the case by the Tribunal itself at the first instance. Secondly, whether any prejudice was caused to Petitioner is a question which arise basically before the Tribunal for consideration. Any thing which is said for the first time before the Writ Court cannot be made basis for setting aside of the impugned order. The Writ Court is meant to examine the finding recorded by the Tribunal on a particular issue in exercise of its jurisdiction conferred under Article 227 of Constitution of India. Section 35e (2) of the Central Excise Act empowers the Tribunal to amend the order if any mistake apparent from the record is noticed. It is for the Tribunal to decide as to whether grievance made by the petitioner falls or/and can be brought within the meaning of apparent mistake under Section 35e (2) of the Central Excise Act and if so can it be made a ground to recall the order. ( 7. ) THIS Court, therefore decline to examine the ground/grievance urged by the petitioner and while dismissing the writ grant liberty to petitioner to approach the Tribunal and pray for the recalling of the impugned order on the ground so raised. ( 7. ) THIS Court, therefore decline to examine the ground/grievance urged by the petitioner and while dismissing the writ grant liberty to petitioner to approach the Tribunal and pray for the recalling of the impugned order on the ground so raised. Once such an application is made to Tribunal, the issue shall be examined in the light of the grievance made strictly in accordance with law. It is, however, made clear that even though no attempt was made by L/c for the petitioner to challenge the impugned order on merits, yet this Court reserves the right of the Petitioner in challenging the impugned order on merits at a later stage in case if the petitioners grievance which is taken note of supra fails before the Tribunal. ( 8. ) AS a result of aforesaid discussion, the petition fails and is dismissed. No cost. Paragraph number as per certified copy.