Dhirubhai Naranbhai Patel, J. - (1.) THESE writ petitions have been preferred against the order passed by the Customs, Excise and Service Tax Appellate Tribunal, Eastern Regional Bench, Kolkata (hereinafter referred to as the CESTAT for the sake of brevity), whereby the CESTAT has dismissed the appeals, preferred under Section 35B of the Central Excise Act, 1944 (hereinafter referred to as the Act, 1944 for the sake of brevity) and has confirmed the orders passed by the Commissioner (Appeals), Central Excise and Service Tax, Ranchi. The Commissioner (Appeals) had dismissed the appeals preferred by these petitioners mainly on the ground that the delay beyond the further period of 30 days cannot be condoned, looking to the bar imposed under Section 35(1) of the Act, 1944. The order/judgment of the Commissioner (Appeals) dismissing the appeals preferred by these petitioners is based upon the decision rendered by Hon'ble Supreme Court in the case of Singh Enterprises v. Commissioner of Central Excise, Jamshedpur and others as reported in : (2008) 3 SCC 70, which speaks that if there is delay of more than 30 days, then under Section 35(1) of the Act, 1944 the Commissioner (Appeals) has no power to condone the delay. Thus, the delay was not condoned by Commissioner (Appeals) and, therefore, these petitioners preferred appeals before CESTAT, which has also dismissed the appeals preferred by these petitioners, confirming the order passed by Commissioner (Appeals) and, therefore, these writ petitions have been preferred by these petitioners.
(2.) LEARNED counsel appearing for the petitioners submitted that the petitioners are invoking the writ jurisdiction of this Court under Article 226 of the Constitution of India, mainly for the reason that the order passed by the Commissioner (Appeals), refusing to condone the delay beyond 30 days, may be under Central Excise Act, 1944, but, whenever there is a perpetuated injustice or whenever there is miscarriage of justice, looking to the facts of the case, then the writ application can always be preferred invoking Article 226 of the Constitution of India and there is no bar upon the power, jurisdiction or authority of the High Court under the Constitution of India to entertain the writ petitions. It is further submitted by the learned counsel for the petitioners that even if efficacious alternative remedy is available, then also to prevent the miscarriage of justice the writ jurisdiction can be invoked. Even if any petitioner has missed the bus or boat because of the provisions of any Act and if it is beyond certain period of limitation, that does not mean that scope of writ jurisdiction is also taken away by virtue of the said Act and, therefore, it is always open to a person or party to approach this Court, even if there is efficacious alternative remedy available or whenever for any reason whatsoever, the petitioner is unable to avail the efficacious alternative remedy. Learned counsel appearing for the petitioners in all the aforesaid writ petitions has relied upon the decision rendered in the case of JCB India Ltd. V. Union Of India, as reported in : 2014 (301) E.L.T 209 P&H and the decision rendered by Hon'ble Gujarat High Court rendered in the case of D.R. Industries Ltd. v. Union of India as reported in : 2008 (229) E.L.T. 24 (Guj.). On the basis of these decisions, it is submitted by learned counsel for the petitioners that the petitioners are confining their prayers, challenging the orders passed in Order -in -Original (herein after referred to as the O -in -O for the sake of brevity). This O -in -O has been passed by the Assistant Commissioner, Central Excise, Jamshedpur. Thus, the arguments canvassed by the learned counsel for the petitioners is that O -in -O is a miscarriage of justice and is having an effect of perpetuated injustice and therefore, instead of challenging the orders passed in Order -in -Appeal (herein after referred to as the O -in -A for the sake of brevity) by Commissioner (Appeals), apart from the order passed by the CESTAT, these petitioners are challenging orders passed in O -in -O in the writ jurisdiction.
(3.) LEARNED counsel for the petitioners has also pointed out to this Court Section 3 of the Central Excise Act, 1944, which is a charging Section to be read with Section 2(d), which is definition of a word "excisable goods" and Section 2(f), which is definition of a word "manufacturer". With the help of these, Section 3 and two definitions, it has been submitted by the learned counsel for the petitioners that they are manufacturing galvanized tubes and in that process, Zinc dross ("Zn -dross") is also produced, which is a by -product. This product is also known as "Zn -dross" in the language of manufacturers. It is contended by the learned counsel for the petitioners that "Zn -dross" is not excisable at all, because it is never manufactured by the petitioners, even though it is saleable, marketable and capable to fetch some sale price. To substantiate his argument, learned counsel for the petitioners has relied upon a decision rendered by Hon'ble the Supreme Court in the case of Collector of Central Excise, Patna v. Tata Iron & Steel Co. Ltd. as reported in : (2004) 9 SCC 1, specially paragraphs 2, 11, 12, 14, 15, 16 & 17 etc. thereof. This judgment is absolutely upon "Zn -dross". Learned counsel for the petitioners has also relied upon a judgment delivered by the Hon'ble Supreme Court in the case of Commissioner of Central Excise v. Indian Aluminium Co. Ltd. as reported in : (2006) 8 SCC 314. Learned counsel for the petitioners has though relied upon the whole judgment, but, specially paragraphs 17, 18 and 19 etc. thereof. This is a judgment upon "Aluminium -dross". On the basis of these two judgments, it is submitted that "Zn -dross" is not an "excisable goods" as per Section 2(d) nor the same is intended to be manufactured by these petitioners and the said product is not even covered by the definition 'manufacturing', as per Section 2(f), nor it is produced by these petitioners. Thus, "Zn -dross" is neither produced nor manufactured nor it is excisable goods and therefore, charging Section, viz. Section 3 of the Act, 1944, cannot be applied and hence, no show cause notice could have been given by the department. This aspect of the matter has not been properly appreciated by the Assistant Commissioner, Central Excise, Jamshedpur while passing orders in O -in -O and hence O -in -O deserves to be quashed and set aside, in all the aforesaid writ petitions.;