Page 89 - ELT_3rd_1st May 2020_Vol 372_Part

2020 ] KESORAM SPUN PIPES AND FOUNDRIES LTD. v. COMMR. OF CENTRAL EXCISE 311

5. After abandoning the further appeal before the Tribunal, the assessee
challenged the order-in-original dated May 7, 2008 by way of a petition under
Article 226 of the Constitution. It was held by the order impugned herein dated
March 6, 2017 that upon the assessee having exhausted the remedies available,
the order of adjudication could not have been assailed in this extraordinary ju-
risdiction. The Union seeks to support the order impugned on such ground, par-
ticularly, since the appeal against the order passed by the Commissioner (Ap-
peals) was withdrawn without any liberty to approach any other forum.
6. The right to approach a constitutional Court under Article 226 of the
Constitution or under Article 32 thereof does not require the permission or liber-
ty of any other forum. Qualitatively, the authority exercised under Article 226 of
the Constitution is not akin to appellate authority. As long as it is demonstrated
that the quasi-judicial order questioned in this jurisdiction is on account of the
breach of the principles of natural justice or in the erroneous exercise of jurisdic-
tion or the like, the writ petition can be entertained, though a constitutional
Court always has the discretion to not grant any relief on other grounds which
are required to be recorded. In the present case, it is evident that a jurisdictional
error may have been committed by the adjudicating authority that the assessee
did not get a chance to address on merits because of the delay on the assessee’s
part to move the appeal.
7. The matter pertains to Rule 6 of the CENVAT Credit Rules, 2004.
Such Rule pertains to the obligation of the manufacturer to make a distinction in
maintaining accounts relating to the use of inputs in taxable and exempted goods
if inputs on which CENVAT credit has been availed of are used in the manufac-
ture of both exempted goods and taxable goods. Broadly speaking, if the manu-
facturer avails of CENVAT credit in respect of inputs and manufactures final
products which are chargeable to duty or tax as well as final products that are
exempted goods, then the manufacturer is required to maintain separate ac-
counts for receipt, consumption and inventory of inputs for use in the manufac-
ture of dutiable final products and separate accounts for similar purpose for use
of the exempted inputs in the manufacture of exempted goods. Rule 6(3)(a) of the
said Rules of 2004 provides a scheme. However, since the appellant in this case
did not follow such scheme, the same is not relevant for the present purpose.
Rule 6(3)(b) of the said Rules of 2004 provides as follows :
“if the exempted goods are other than those described in condition (a), the
manufacturer shall pay an amount equal to ten per cent. of the total price,
excluding sales tax and other taxes, if any, paid on such goods, of the ex-
empted final product charged by the manufacturer for the sale of such
goods at the time of their clearance from the factory;”
8. There are Explanations which apply to the entirety of Rule 6(3) of the
said Rules, including the following first Explanation :
“The amount mentioned in conditions (a) and (b) shall be paid by the man-
ufacturer or provider of output service by debiting the CENVAT credit or
otherwise.”
9. According to the appellant, the appellant calculated the 10% in terms
of Rule 6(3)(b) of the said Rules of 2004 and passed it on to the purchasers of the
relevant goods from the appellant; but instead of depositing such amount of 10%
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