Prabhat Zarda Factory India Pvt. Ltd. V. Commissioner, Central Excise Patna now designated as Commissioner, CGST and CX Patna

CWJC/15669/2024

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The case involves Prabhat Zarda Factory India Pvt. Ltd., which challenged an order from the Customs, Excise and Service Tax Appellate Tribunal, Eastern Zonal Bench, Kolkata. The Tribunal had previously refused to rectify a mistake in their order, which the petitioner argued was influenced by a larger bench decision in Larsen and Toubro Ltd. v. Commissioner of Income Tax, Chennai. The petitioner contended that Section 35H of the Central Excise Act, 1944, which was allegedly omitted by the National Tax Tribunal Act, 2005, was still in effect following its revival by a Supreme Court decision. However, the High Court dismissed the writ petition, noting that the petitioner had not challenged the relevant order and that the rectification application was not an appropriate remedy.

• Counselvise Citation: [2024] 140 COUNSELVISE.COM (IT) 739887 (HC-PATNA)
• Appeal Type: Others
• Pronouncement Date: 26-11-2024
• Assessment Year: misc
• Other Referred Cases: Larsen and Toubro Ltd. v. Commissioner of Income Tax, Chennai, Madras Bar Association v. Union of India & Anr.
• Laws Referred To: Central Excise Act, 1944, National Tax Tribunal Act, 2005
• Result in Favour of: Revenue
• Court: HIGH COURT
• Department Lawyers: K N SINGH; ANSHUMAN SINGH; PRABHAT KUMAR SINGH
• Assessee Lawyers: D V PATHY
• Keywords: Central Excise Act; Customs, Excise and Service Tax Appellate Tribunal; Rectification of mistake; Ultra Vires; National Tax Tribunal Act; Writ petition dismissed
• Section: 35H

Judgement Text

"IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.15669 of 2024 ====================================================== Prabhat Zarda Factory India Pvt. Ltd. a company incorporated under the Companies’ Act, 1956 having its office at Sikandarpur, Muzaffarpur, through its Director Rajesh Kumar (aged about 45 years (Male) son of Late Shridhar Prasad, resident of New Area Sikandarpur, Musahri, PO + PS-Ramana District Muzaffarpur, Bihar. ... ... Petitioner/s Versus Commissioner, Central Excise, Patna now designated as Commissioner, CGST & CX, Patna having its office at Bir Chand Patel Marg, Patna-800001. ... ... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr.D.V.Pathy, Advocate For the Respondent/s : Dr. K.N. Singh, Additional Solicitor General Mr. Anshuman Singh, Sr. SC, CGST & CX Mr. Prabhat Kumar Singh, Advocate ====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE PARTHA SARTHY ORAL JUDGMENT (Per: HONOURABLE THE CHIEF JUSTICE) Date : 26-11-2024 The petitioner is aggrieved with the order of the Customs, Excise and Service Tax Appellate Tribunal, Eastern Zonal Bench, Kolkata, which refused to interfere with their earlier order, holding that there was no rectification of mistake pointed out by the petitioner-appellant. 2. The brief facts to be noticed is that the petitioner had challenged an order of the Tribunal before this Court under Section 35H of the Central Excise Act, 1944. Before this Court, it was argued that the very issue decided by the Tribunal, by the impugned order, was referred to a larger Bench, and the Patna High Court CWJC No.15669 of 2024 dt.26-11-2024 2/3 impugned order was overruled by the larger Bench of the Tribunal in Larsen and Toubro Ltd. v. Commissioner of Income Tax, Chennai vide order reported in 2006 (3) S.T.R. 321. It was submitted before Court that, on the larger Bench overruling the impugned order of the Tribunal, the assessee became entitled to the relief. However, the Division Bench by Annexure-P-1 found that Section 35H is no more in the statute book; it having been omitted by National Tax Tribunal Act, 2005. On the request of the petitioner, the petitioner was left to avail alternate remedies. 3. The petitioner filed a rectification application before the Tribunal, which stood rejected, as per Annexure-P-3. 4. The learned Counsel appearing for the petitioner would contend that Section 35H is very much in the statute book; since the National Tax Tribunal Act, 2005 was set aside as ultra vires by the Hon’ble Supreme Court in Madras Bar Association v. Union of India & Anr. (Civil Appeal No. 3850/2006), in which circumstance, Section 35H revives. 5. We cannot but notice that we are not concerned with the Tax Reference Case as of now, which has already been decided by another Division Bench of this Court, especially recording the prayer of the petitioner to permit him to avail Patna High Court CWJC No.15669 of 2024 dt.26-11-2024 3/3 alternate remedies. Rectification application definitely is not the remedy that is available as has been held by the Tribunal; which can only rectify apparent errors. The petitioner has not thought it fit to challenge Annexure-P-1 order also. 6. In such circumstances, we find no reason to entertain the writ petition and the same stands dismissed. P.K.P./- (K. Vinod Chandran, CJ) (Partha Sarthy, J) AFR/NAFR CAV DATE Uploading Date 27.11.2024 Transmission Date "