TMI Blog2006 (12) TMI 442X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the appellate Tribunal is without appreciating the facts and circumstances of the case in its true and correct perspective. That the impugned order is passed without applying the correct legal position and without appreciating the evidence and accordingly requires to be quashed and set aside. (b) that the impugned order is passed in defiance of the principles of natural justice inasmuch the same is an ex parte order. The applicant though requested for specific hearing, the same was not granted to them and the order has been passed ex parte only on the arguments and submissions of the departmental representative. On this ground only, the impugned order requires to be quashed and set aside as the same is in violation of the basic lega ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecord. In fact, the provisions of Rule 173-h specifically allow manufacturers like the applicant to repair, refine, reprocess etc. any such defective goods cleared by them by permitting re-entry of the same in the factory premises and after such process removed the same without payment of duty provided no such process has taken place which amounts to manufacture. Firstly, therefore, it is necessary to refer to and understand the provisions of Rule 173-h of the Central Excise Rules, 1944 which are as under :- .. (e) Now, resorting to the provisions of Rule 173-h as stipulated once again it is found that there are no further conditions imposed therein as to whether in such process of repair, refine, reconditioning etc. an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h) That the impugned order is further vitiated and improper inasmuch as the same is passed relying upon rather irrelevant cases and their findings without properly matching or applying the same to the facts of the present case. The Tribunal has sought it to refer to and to rely upon cases which have no direct bearing on the facts of the present case and which are clearly distinguishable rather than seeking to place reliance upon the directly identical cases cited before it. In fact, a reading of the case of Reliance Storage Energy and Systems Pvt. Ltd. v. CCE, Calcutta reported in 2001 (131) E.L.T. 210 where similar activity of remaking of defective batteries was undertaken by them has been upheld to be an activity not amounting to manufact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontentions of the present respondent in concluding the activity of remaking of warranty claimed rejected batteries is proper and legal as per the provisions of erstwhile Rule 173-h and the new substituted Rule 16 of the Central Excise Rules. (k) Now going by the grounds of appeal raised by the appellant department in their memorandum of the appeal we hereinbelow concisely and briefly point out our objections to the same. (l) With reference to ground I taken in the memorandum of appeal that Rule 173-h does not contemplate sending out the main inputs for any reprocessing appears to be highly vague, inconsistent with the legal provisions and de hors the beneficial intention of the enabling provisions of Rule 173-h itself as it is a settled ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rai - 2002 (149) E.L.T. 1455 (Tri.-Chennai); (e) Mayank Electrod Ltd. v. CCE, Daman - 2006 (198) E.L.T. 548 (Tri-Mum); (f) Reliance Storage Energy Systems Pvt. Ltd. v. CCE, Calcutta-III - 2001 (131) E.L.T. 210 (Tri.-Cal); (g) Asahi India Glass Ltd. v. CCE, Belapur - 2006 (199) E.L.T. 66 (Tri.-Mum.); (h) Nugas Technologies India Pvt. Ltd. v. CCE, Delhi - 2005 (181) E.L.T. 75 (Tri-Del); (i) CCE, Mumbai-V v. Haldyn Glass Ltd. - 2004 (170) E.L.T. 298 (Tri.-Mum); (j) Supreme Industries Ltd. v. CCE, Chandigarh - 2005 (189) E.L.T. 453 (Tri.-Mumbai); (k) CCE C, Pune v. Sterlite Industries (I) Ltd. - 1999 (107) E.L.T. 73 (Tribunal); (l) Baijanath Plastics Products v. CCE, Mumbai-V - 2001 (138) E ..... X X X X Extracts X X X X X X X X Extracts X X X X
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