IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE TWENTY SIXTH DAY OF JUNE TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MRS JUSTICE T.MEENA KUMARI AND THE HON'BLE MR JUSTICE RAMESH RANGANATHAN 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 India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue an appropriate writ, direction or order especially in the nature of Writ of Certiorari quashing the order dated 5-5-2008 passed by Customs, Excise and Service Tax Appellate Tribunal, South Zonal Bench, Bangalore in E/ROM/58/2007 in Appeal No. E/29/2007 and direct the Tribunal to dispose of the said application on merits and pass Counsel for the Petitioner: MR.S.RAVI Counsel for the Respondent No.: MR.A.RAJASHEKAR REDDY (ASST SOLICITOR GEN) 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 dated 5.5.2008 made in E/ROM/58/2007 in E/29/2007 by the Customs, Excise and Service Tax Appellate Tribunal, South Zonal Bench, Bangalore, and to direct the Tribunal to dispose of the said application on merits, the petitioner filed this writ petition. The petitioner is a manufacturer of M.S. Steel Tubes. While so, the Original Authority raised a demand of Rs.5,06,029/- towards central excise duty, apart from cess, interest and penalty, which was appealed against by the petitioner before the First Appellate Authority – Commissioner, Central Excise (Appeals), Hydeabad, but the same was dismissed. The petitioner preferred Second Appeal before the Customs, Excise and Service Tax Appellate Tribunal in Appeal No. E/29/2007, which was also dismissed by order dated 8.6.2007, however, reducing quantum of penalty. The petitioner, noticing certain mistakes, filed rectification application before the Tribunal in E/ROM/58/2007 in E/29/2007. On 5.5.2008, the Tribunal rejected the application observing that the rectification application has to be disposed of before six months from the date of Final Order, but since six months have elapsed from the date of Final Order, the Tribunal cannot dispose of the matter Hence, the present writ petition. Heard Mr. S. Ravi, the learned counsel for the petitioner and Mr.A.Rajshekar Reddy, learned Assistant Solicitor General of India, appearing for the respondent. It is contended by the learned counsel for the petitioner that the petitioner had filed the ROM application within time, but the Tribunal erred in counting the period of limitation by taking into account the period of pendency of the ROM application, which is not in terms of Sec. 254 of the Income Tax Act. Contending so, he relied on a decision of the Apex Court in Sree Ayyanar Spinning & Weaving Mill Limited Vs. Commissioner of Income Tax([1]). On the other hand, the learned Assistant Solicitor General of India has vehemently opposed the relief prayed contending that the Tribunal is perfectly justified in rejecting the ROM Application and the order cannot be quashed at this stage, more particular in view of the fact that alternative remedy of appeal to the Apex Court, is available to the petitioner. It appears that the ROM application was filed within time. The Tribunal rejected the application on the ground that it cannot pass an order after lapse of six months. Thus, for the purpose of limitation, it appears that the Tribunal has calculated the period of pendency of the ROM. This principle is squarely covered by the judgment of the Apex Court in Ayyanar Spinning’s case, cited supra. Therefore, the matter requires reconsideration by the Tribunal. Consequently, the writ petition is allowed and the matter is remanded back to the Tribunal for passing orders afresh, after affording an opportunity to the petitioner, in accordance with law. No order as to costs. ____________________ T.MEENA KUMARI, J. __________________________ RAMESH RANGANATHAN, J. June 26, 2008 MAS ..... REGISTRAR // TRUE COPY // SECTION OFFICER To 1.2CCs to 2.2CD copies Form-NIC-OGS/WP{SPJS} [1] 2008-TIOL-106-SC-IT