Wp/13445/2008 Of M/S. Neeraj Pipes Private Limited v. Commissioner Of Income Tax ~~(~~ [[1]] ~~)~~

IN THE HIGH COURT OF JUDICATURE, ANDHRAPRADESH AT HYDERABAD(Special Original Jurisdiction) THURSDAY, THE TWENTY SIXTH DAY OF JUNETWO THOUSAND AND EIGHT PRESENT THE HON'BLE MRS JUSTICE T.MEENA KUMARIAND THE HON'BLE MR JUSTICE RAMESHRANGANATHAN WRIT PETITION NO : 13445 of 2008 Between: M/s. Neeraj Pipes Private Limited,Having its office at Sy.No. 182, Gaganpahad,Ranga Reddy District Rep by its Director,Mr. Pankaj Agarwal S/o. Sri Shyam Sunder Agarwal,Aged 40 years, Resident of Hyderabad. ..... PETITIONER AND The Commissioner of Central Excise,Commissionerate IV, Basheerabagh, Hyderabad. .....RESPONDENT Petition under Article 226 of the constitution of Indiapraying that in the circumstances stated in the Affidavitfiled herein the High Court will be pleased to issue anappropriate writ, direction or order especially in the natureof Writ of Certiorari quashing the order dated 5-5-2008passed by Customs, Excise and Service Tax AppellateTribunal, South Zonal Bench, Bangalore inE/ROM/58/2007 in Appeal No. E/29/2007 and direct theTribunal to dispose of the said application on merits andpass Counsel for the Petitioner: MR.S.RAVI Counsel for the MR.A.RAJASHEKAR REDDY GEN) Respondent No.: (ASST SOLICITOR The Court made the following : ORAL ORDER:(per THE HON’BLE MRS. JUSTICE T.MEENA KUMARI) Seeking a writ of certiorari to quash the order dated5.5.2008 made in E/ROM/58/2007 in E/29/2007 by theCustoms, Excise and Service Tax Appellate Tribunal,South Zonal Bench, Bangalore, and to direct the Tribunalto dispose of the said application on merits, the petitionerfiled this writ petition. The petitioner is a manufacturer of M.S. SteelTubes. While so, the Original Authority raised a demandof Rs.5,06,029/- towards central excise duty, apart fromcess, interest and penalty, which was appealed againstby the petitioner before the First Appellate Authority –Commissioner, Central Excise (Appeals), Hydeabad, butthe same was dismissed. The petitioner preferredSecond Appeal before the Customs, Excise and ServiceTax Appellate Tribunal in Appeal No. E/29/2007, whichwas also dismissed by order dated 8.6.2007, however, reducing quantum of penalty. The petitioner, noticingcertain mistakes, filed rectification application before theTribunal in E/ROM/58/2007 in E/29/2007. On 5.5.2008,the Tribunal rejected the application observing that therectification application has to be disposed of before sixmonths from the date of Final Order, but since six monthshave elapsed from the date of Final Order, the Tribunalcannot dispose of the matter Hence, the present writpetition. Heard Mr. S. Ravi, the learned counsel for thepetitioner and Mr.A.Rajshekar Reddy, learned AssistantSolicitor General of India, appearing for the respondent. It is contended by the learned counsel for thepetitioner that the petitioner had filed the ROM applicationwithin time, but the Tribunal erred in counting the periodof limitation by taking into account the period ofpendency of the ROM application, which is not in termsof Sec. 254 of the Income Tax Act. Contending so, herelied on a decision of the Apex Court in Sree AyyanarSpinning & Weaving Mill Limited Vs. Commissioner ofIncome Tax([[1]]). On the other hand, the learned Assistant SolicitorGeneral of India has vehemently opposed the reliefprayed contending that the Tribunal is perfectly justified in rejecting the ROM Application and the order cannot bequashed at this stage, more particular in view of the factthat alternative remedy of appeal to the Apex Court, isavailable to the petitioner. It appears that the ROM application was filed withintime. The Tribunal rejected the application on the groundthat it cannot pass an order after lapse of six months.Thus, for the purpose of limitation, it appears that theTribunal has calculated the period of pendency of theROM. This principle is squarely covered by the judgmentof the Apex Court in Ayyanar Spinning’s case, citedsupra. Therefore, the matter requires reconsideration bythe Tribunal. On the other hand, the learned Assistant SolicitorGeneral of India has vehemently opposed the reliefprayed contending that the Tribunal is perfectly justified in rejecting the ROM Application and the order cannot bequashed at this stage, more particular in view of the factthat alternative remedy of appeal to the Apex Court, isavailable to the petitioner. It appears that the ROM application was filed withintime. The Tribunal rejected the application on the groundthat it cannot pass an order after lapse of six months.Thus, for the purpose of limitation, it appears that theTribunal has calculated the period of pendency of theROM. This principle is squarely covered by the judgmentof the Apex Court in Ayyanar Spinning’s case, citedsupra. Therefore, the matter requires reconsideration bythe Tribunal. Consequently, the writ petition is allowed and thematter is remanded back to the Tribunal for passingorders afresh, after affording an opportunity to thepetitioner, in accordance with law. No order as to costs. ____________________ T.MEENA KUMARI, J. June 26, 2008MAS __________________________ RAMESH RANGANATHAN, J. ..... REGISTRAR // TRUE COPY // SECTION OFFICER To 1.2CCs to2.2CD copiesForm-NIC-OGS/WP{SPJS} [1]2008-TIOL-106-SC-IT