M/S.Neelachal Ispat Nigam Ltd. v. Commissioner,Gst And Central Excise

IN THE HIGH COURT OF ORISSA AT CUTTACK

W.P.(C) No.13892 of 2018 M/s. Neelachal Ispat Nigam Ltd.

....

Petitioner Mr. Abhratosh Majumdar, Senior Advocate with Ms. Pami Rath, Advocate -versus- ....

Opposite Parties Commissioner, GST & Central Excise, Bhubaneswar Commissionerate and another Mr. T.K. Satapathy, Senior Standing Counsel

CORAM:

THE CHIEF JUSTICE JUSTICE M.S. RAMAN Order No.

ORDER

07.12.2022 19.

1. The challenge in the present petition is to both a show cause notice (SCN) dated 25th /26th February 2010 issued by the Commissioner, Central Excise as well as to the adjudication order dated 27th April 2018 passed by him confirming the demand raised in the SCN.

2. On 3rd April 2019, this Court directed that no coercive action would be taken pursuant to the order dated 27th April, 2018. On 23rd October 2019, it was clarified that the order impugned if implemented shall be subject to the result of the writ petition. Again, on 20th November 2019, the earlier interim order of 3rd April 2019 was continued.

3. This Court has heard the submissions of Mr. Abhratosh Majumdar, learned Senior Advocate appearing for the Petitioner

and Mr. T.K. Satapathy, learned Senior Standing Counsel for the Department.

4. The main ground on which the impugned adjudication order has been challenged is that the Commissioner travelled beyond the scope of the original SCN as reflected in the impugned order. It is submitted by Mr. Majumdar that the impugned order was based on certain audit objections which did not form the subject matter of the original SCN. Further, he submits that by virtue of the amendment to Rule 6 of the Cenvat Credit Rules 2004 by Section 73 of the Finance Act 2010, the jurisdictional fact regarding wrongful availment of credit by the Petitioner no longer survived; by then the Petitioner had reversed the credit and paid the interest amount.

5. Admittedly, the adjudication order is an appealable one. All the grounds urged by the learned Senior Advocate appearing for the Petitioner before this Court and as pleaded in the petition can well be urged in the statutory appeal to be filed in the Tribunal against the impugned order.

6. Consequently, while not being inclined to interfere with the impugned order at this stage, the Court permits the Petitioner to file an appeal thereagainst as provided in the statute in question in accordance with law. If such appeal is filed not later than 9th January 2023 accompanied by an application for condonation of delay, explaining the delay on account of the pendency of the present writ petition, it will be considered in accordance with law by the Tribunal. Till such time the Tribunal passes an order on the application for interim relief, the interim order passed by this Court

on 3rd April 2019 will continue. It will be open to the Petitioner to request the Tribunal for expeditious disposal of the appeal.

7. The writ petition is disposed of in the above terms.

8. Issue urgent certified copy of this order as per rules. (Dr. S. Muralidhar) Chief Justice (M.S. Raman) Judge S.K. Guin