By TIOL News Service

CHENNAI, APR 15, 2017: THE appellant had assailed the order-in-original dated 29.10.2010 by preferring a writ petition W.P.No.26310 of 2016 under Article 226 of the Constitution.

This Writ Petition was dismissed by the Single Judge.

We reported this order dated 30.09.2016 - 2016-TIOL-2543-HC-MAD-CX thus -

Central Excise - Resurrection of stale claim - Writ maintainability - Appeal against Order-in-original confirming demand of Cenvat Credit was dismissed for being filed beyond condonable limit and stood merged with the order of Appellate Authority - Said order was confirmed by the Writ Court as well as by the Division Bench - Petitioner thus cannot have a second round of litigation challenging the very same orders questioning the merits of the assessment - Principles of promissory estoppel applicable. (Para 12-16)

Central Excise - Show Cause Notices issued pertain to different assessment periods - Invocation of extended limitation period on ground of suppression, not unjustified. (Para 11)

This order is challenged before the Division Bench on the following grounds -

(i). The learned Single Judge failed to appreciate that the order-in-original was passed in breach of principles of natural justice.

(ii). That the learned Single Judge failed to appreciate that the ratio of the judgment of the Supreme Court in the case of Nizam Sugar Factory vs. Collector of Central Excise, A.P.- 2006-TIOL-56-SC-CX .

(iii). That the order of the CST (A) could not have merged with the order-in-original, as held by learned Single Judge, since, there was no decision on merits.

(iv). That the learned Single Judge has, incorrectly, noted that the second respondent had not observed that half-yearly returns had not been filed.

The Division Bench held -

++ The appellant, in this round, seeks to challenge the order-in-original, which, according to us, cannot be permitted. The reason being, if, we were to agree with the appellant, and thereupon proceed to quash the order-in-original, it would leave the order of the CST (A) untouched, as, even according to him, the order-in-original did not merge with the order of the CST (A). Furthermore, it could also, potentially, result in a very peculiar situation, which is, that by a side-wind, we would have emasculated the judgment of the Division Bench rendered in the first round of its efficacy.

++ It is settled law that statutory forums and/or Courts, can and/or do decide matters both rightly and wrongly, albeit, within the limits of their respective jurisdictions. Erroneous orders of statutory forums and/or courts can only be corrected by a procedure known to law. [ Ujjam Bai V. State of U.P. - 2002-TIOL-260-SC-CT-CB refers]

++ A perusal of the grounds, on which, the order of the learned Single Judge has been assailed would show that except for the first ground, all others are errors, if at all, are errors of law or fact.

++ Insofar as the first ground is concerned, that is, the order-in-original was passed in breach of principles of natural justice, we can only state that, if, this assertion is correct, it is an error pertaining to jurisdiction, which could have, perhaps, been corrected, if, appropriate timely steps had been taken by the appellant, which could include a remedy by way of a petition filed under under Article 226 of the Constitution. The appellant, by his own conduct, as is evident from the narration of facts above, has allowed the order-in-original to remain intact. With the Division Bench passing an order in the earlier round, the order-in-original has attained finality; which, as indicated above, cannot be disturbed by us, in what is a second round of litigation.

Concluding that after expiry of more than six years, the appellant cannot be permitted to challenge the order-in-original via the present proceedings, the Writ appeal was dismissed.

(See 2017-TIOL-735-HC-MAD-ST)