IWI CRYOGENIC VAPORIZATION SYSTEM (INDIA) PVT. LTD. Versus COMMISSIONER OF CGST AND CENTRAL EXCISE VADODARA-I
Central Excise
2018 (9) TMI 173 – GUJARAT HIGH COURT – [2018] 59 G S.T.R. 329 (Guj)
GUJARAT HIGH COURT – HC
Dated:- 30-8-2018
R\/TAX APPEAL No. 1079 of 2018
Central Excise
MR. AKIL KURESHI AND MR. B.N. KARIA, JJ.
\nFor The PETITIONER : Mr DHAVAL SHAH, Advocate
\nFor The RESPONDENT : Ms. MANISHA LAVKUMAR with Ms SHRUTI S PATHAK, AGP
\nORAL ORDER
\n(PER : HONOURABLE Mr. JUSTICE AKIL KURESHI)
\nThis Appeal is filed by the assessee challenging the judgment of the Customs, Excise & Service Tax Appellate Tribunal, Ahmedabad [“the Tribunal” for short] rejecting the application for rectification of an order of the Tribunal.
\nBrief facts are as under :
\nThe assessee was served with a show cause notice for recovery of unpaid dues with interest and penalty under the service tax regime. Despite opposition by the assessee, the same were confirmed. The issue travelled to th<\/p>\n
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Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n tion of law and facts, we do not permit same before us for the first time. However, if it is open for the appellant to file a rectification application before the Tribunal on such basis, we do not prevent him from doing so. Tax Appeal is therefore dismissed.” = = = = = = = =<\/p>\n Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n ing the appeals and making orders under this section, the Appellate Tribunal shall exercise the same powers and follow the same procedure as it exercises and follows in hearing the appeals and make orders under the Central Excise Act, 1944. Thus, the jurisdiction, scope and procedure to be followed by the Tribunal while hearing the appeals under Section 86 of the Finance Act, 1994 are borrowed by reference from the Central Excise Act, 1944. It is undisputed that Section 35C of the Central Excise Act, 1944 which pertains to “Orders of Appellate Tribunal” provides under sub-section [2] thereof that the Appellate Tribunal may, at any time within six months from the date of the order, with a view to rectifying any mistake apparent from the record, amend any order passed by it under sub-section [1] and would make such amendments, if the mistake is brought to its notice by the Department, or any other party to the appeal. Thus, the power of the Tribunal while disposing of appeals in terms of<\/p>\n = = = = = = = =<\/p>\n Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n er. Even after the High Court dismissed the appeal on 28th January 2016, it appears from the recored that the rectification application was filed nearly six months later. Therefore, only on the question of limitation, rectification application could have been dismissed by the Tribunal; though Tribunal did not advert to this aspect of the matter. When the High Court dismissed the appeal of assessee in the earlier round of litigation, it merely kept liberty open to the assessee to approach the Tribunal by filing rectification application; if it was open for the appellant to do so. The High Court did not mandate the Tribunal to either entertain such an application or open an avenue; which otherwise may have been closed. = = = = = = = =<\/p>\n Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n","protected":false},"excerpt":{"rendered":" IWI CRYOGENIC VAPORIZATION SYSTEM (INDIA) PVT. LTD. Versus COMMISSIONER OF CGST AND CENTRAL EXCISE VADODARA-ICentral Excise2018 (9) TMI 173 – GUJARAT HIGH COURT – [2018] 59 G S.T.R. 329 (Guj)GUJARAT HIGH COURT – HCDated:- 30-8-2018R\/TAX APPEAL No. 1079 of 2018 Central ExciseMR. AKIL KURESHI AND MR. B.N. KARIA, JJ. For The PETITIONER : Mr DHAVAL … Continue reading “IWI CRYOGENIC VAPORIZATION SYSTEM (INDIA) PVT. LTD. Versus COMMISSIONER OF CGST AND CENTRAL EXCISE VADODARA-I”<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[],"tags":[],"class_list":["post-13524","post","type-post","status-publish","format-standard","hentry"],"_links":{"self":[{"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=\/wp\/v2\/posts\/13524","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=13524"}],"version-history":[{"count":0,"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=\/wp\/v2\/posts\/13524\/revisions"}],"wp:attachment":[{"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=13524"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=13524"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=13524"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}
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\nThe assessee thereupon approached the Tribunal again in an application filed for rectification. Such rectification application came to be dismissed by the impugned order in which the Tribunal held that the assessee had not raised such a contention before the Tribunal, or even before the lower authorities earlier and any exercise by the Tribunal to entertain such a contention to modify the order would amount to review- a power which the Tribunal does not possess.
\nWhen we took up the appeal for hearing, two questions were discussed – First was, whether the application for rectification could have been presented beyond the period of limitation prescribed and the second question was-whether the Tribunal was correct in dismissing th<\/p>\n
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\nEven otherwise, we do not think that the Tribunal has committed any error. The Tribunal recorded that all along, the assessee had never raised such a contention. Before the lower authorities or before the Tribunal, no such ground was raised. Learned advocate Shri Shah dre<\/p>\n
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