One Touch Medicals Products Pvt. Ltd. Versus The Commissioner of Central GST & Central Excise, Patna II
Central Excise
2018 (8) TMI 615 – PATNA HIGH COURT – TMI
PATNA HIGH COURT – HC
Dated:- 3-8-2018
Civil Writ Jurisdiction Case No.12073 of 2018
Central Excise
MR. RAJEEV RANJAN PRASAD J.
Appearance :
For the Petitioner/s: Mr. D.V.Pathy, Advocate
For the Respondent/s: Mr. S.D Sanjay (Addl. Soc. Gen.) Mr. Anjani Kr. Saran, Asst. S.G.
ORAL JUDGMENT
(Per: MR. RAJEEV RANJAN PRASAD)
This writ application has been preferred for setting aside the notice dated 16.02.2018, as contained in Annexure-10, to the writ application, issued by respondent no. 4 directing recovery of Central Value Added Tax (in short 'CENVAT') Credit and Penalty for the period 2009-10 under Section 11 of the Central Excise Act, 1944 read with Section 174 of the Central GST Act.
2. Mr. D.V. Pathy, learned counsel for the petitioner submits that the order of assessment said to have been passed o
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en cancelled, but vide impugned Annexure-12 to the writ application, the Commissioner (Appeals) concluded that the appellant has taken an effort only to nullify their failure to file their appeal within the stipulated period and has chosen to file the appeal against the recovery proceedings initiated against them. The Commissioner (Appeals) observed that because the impugned letter dated 08.02.2018 has been cancelled and withdrawn, the request for appeal has become infructuous. he refused to accept the other request of the appellant to direct the respondent to provide them a certified copy of the order-in-original dated 19.03.2014 in view of the facts available on the record clearly establishing that the relevant order in original dated 19.03.2014 was communicated to the appellant in form of an attested copy which is as good as certified copy of the order taking into account the fact that the said order in original was attested by the Superintendent (Adjn), Central Excise (Headquarters
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alable in nature.
6. Having heard learned counsel for the parties and upon perusal of the records, we find that under Section 35H of the Central Excise Act an appeal is provided against the assessment order within a period of 60 days from the date of service of the order.
7. The contention of the petitioner is that the said section empowers the Commissioner to condone a delay of only up to 30 days if reasonable causes shown and in view of such statutory provision filing of an attested copy of the order in original would not be sufficient to condone the delay in filing of the appeal before the Commissioner (Appeal) but fact remains that the petitioner has not availed the statutory remedy of Appeal against the order dated 19.03.2014.
8. We are not willing to go into the merits of the contention at this stage as we find from Annexure-12 that there is a finding to the effect that the petitioner was served with a duly attested copy of the order dated 19.03.2014, and the Commissioner (App
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