Himanshu Traders vs Commissioner of Central Excise and Customs

K.A. Puj, J.—Rule : Mr. Gaurang H. Bhatt, the learned Standing Counsel appearing for the Revenue waives service of Rule.

The Petitioner has filed this petition under Article 226 of the Constitution of India praying for quashing and setting aside the order passed by the Tribunal on 27-7-2007 in Excise Rectification of Mistake Application No. 31 to 87 of 2006 in Excise Appeal No. 4453 to 4459 of 1993.

This Court has issued notice on 9-2-2010 for final disposal of the petition.

Heard Mr. D.V. Parikh, the learned Advocate appearing for the petitioners and Mr. Gaurang H. Bhatt, the learned Standing Counsel appearing for the Revenue.

The short issue involved in this petition is that despite the order passed by this Court on 8-8-2006 in Special Civil Application Nos. 8003 of 2006 to 8009 of 2006, permitting the petitioners to withdraw their petitions with a liberty to file Misc. Applications before the Tribunal and to decide the said Misc. Applications in accordance with law, the Tribunal has disposed of Ratification Applications only on the ground that the petitioners had filed applications on 11-10-2006 in the order passed in the year 2002, i.e. after six months and hence applications are barred by limitation. It is very unfortunate that the Tribunal has not considered the order of this Court in its proper perspective and overlooked the circumstances under which the petitioners were permitted to withdraw the said petitions. While passing the order dated 8-8-2006, this Court has recorded the submissions made on behalf of the petitioners that there was an error in the order passed by the Tribunal as the issue was covered by the decision of the Hon''ble Apex Court in the case of Supreme Washers (P) Ltd. Vs. The Commissioner of Central Excise, Pune, This Court has also recorded the submissions made on behalf of the petitioners that there is a Circular bearing No. 6/92, dated 29-5-1992 to the effect that the Company cannot be clubbed with other units for the purpose of separate exemption limit. Despite this fact, in the original order, the Company was clubbed with firms for the purpose of value of clearance. This aspect was not considered by the Tribunal in the Review Petition, which was challenged before this Court in Special Civil Application No. 8003 of 2006 to 8009 of 2006.

After recording the above submissions, the Court has expressed an opinion that if the case of the petitioner was to be accepted that there was an apparent mistake in the impugned order of the Tribunal dated 28-6-2004, in that eventuality, the petitioners should approach the Tribunal with a case that the issue in question is directly covered by the decision of the Hon''ble Apex Court.

The above order of this Court was very much available with the Tribunal. Without considering the above aspect, the Tribunal has adopted a shortcut and rejected the Ratification of Mistake Application only on the ground of limitation. We are of the opinion that the approach adopted by the Tribunal is highly deprecated. When the petitioners'' case is claimed to be covered by the decision of the Hon''ble Apex Court or even by the Circular issued by the department, the Tribunal should have decided the issue considering these two aspects of the matter. Since this has not been done, the impugned order passed by the Tribunal cannot be sustained either in law or on facts. We, therefore, quash and set aside the impugned order passed by the Tribunal and remit the matter back to the Tribunal to decide the Ratification Application on merits and after considering the decision of the Hon''ble Apex Court in the case of Supreme Washers (P) Ltd. v. Commissioner of Central Excise, Pune (Supra) as well as the Circular bearing No. 6/92, dated 29-5-1992.

Subject to the aforesaid direction and observation, this petition is accordingly allowed. Rule is made absolute to the aforesaid extent without any order as to costs.