Prabhat Zarda Factory INDIA PVT. LTD. vs. Commissioner, Central Excise Patna Now Designated As Commissioner, CGST And Cx Patna

Held

The Court held that Section 35H of the Central Excise Act, 1944, is no longer on the statute book, as it was omitted by the National Tax Tribunal Act, 2005. The Court noted that the petitioner had previously been permitted to avail alternate remedies after the High Court observed the omission of Section 35H. The Court further found that a rectification application, as filed by the petitioner, is not an available remedy for the issues raised, as it can only rectify apparent errors. The petitioner had not challenged the earlier High Court order (Annexure-P-1) which directed them to pursue alternate remedies. Therefore, the Court found no reason to entertain the writ petition.

Facts

The petitioner, Prabhat Zarda Factory India Pvt. Ltd., is aggrieved by an order of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) which refused to interfere with a prior order, stating there was no rectification of a mistake. The petitioner had initially challenged an order of the Tribunal before the High Court under Section 35H of the Central Excise Act, 1944. They argued that the issue decided by the Tribunal was referred to a larger bench and the impugned order was overruled by the larger bench in Larsen and Toubro Ltd. v. Commissioner of Income Tax, Chennai. The High Court, however, noted that Section 35H was omitted by the National Tax Tribunal Act, 2005, and permitted the petitioner to avail alternate remedies. Subsequently, the petitioner filed a rectification application before the Tribunal, which was rejected.

Key Issues

1. Whether Section 35H of the Central Excise Act, 1944, is still on the statute book, thereby reviving its applicability, given that the National Tax Tribunal Act, 2005, was set aside as ultra vires by the Supreme Court in Madras Bar Association v. Union of India & Anr. Petitioner's Contention: The petitioner argued that Section 35H of the Central Excise Act, 1944, is indeed in force because the Supreme Court's decision in Madras Bar Association v. Union of India & Anr. rendered the National Tax Tribunal Act, 2005, ultra vires, leading to the revival of Section 35H. Respondent's Contention: The respondent did not explicitly record arguments in the judgment. However, the High Court's reasoning implies that the respondent likely maintained that Section 35H was no longer applicable and that a rectification application was not the appropriate remedy.