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TMI Blog2008 (1) TMI 22X X X X Extracts X X X X X X X X Extracts X X X X ..... urther held that they are classifiable under C.H.H. 73.25 and 74.19 (depending on the metal used) and, therefore, the classification was correct. Various other questions were considered and in conclusion proposed quantify the duty and consequently directed the assessee to furnish certain data. Another order was passed to the similar effect on 14th September, 2000. 3. Pursuant to the said orders the petitioner furnished the necessary information. By order dated 11th November, 2004 the respondent No.4 demanded duty on the CI castings for the amount specified therein. Subsequent thereto the petitioner preferred an Appeal before the Commissioner of Appeal. That appeal was filed beyond the prescribed period of limitation. The learned App ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hould not exercise its extra ordinary jurisdiction. In paragraph 7 it is set out that during the relevant period the pumps were only exempted from payment of central excise duty by virtue of notification dated 28th February, 1993 or were chargeable to Nil rate of duty by the Tariff Entry itself. The petitioner it is contended has not paid any central excise duty on the castings of cast iron and gun metal and spare parts manufactured by the petitioners and the said goods were consumed captively in the manufacture of the aforesaid pumps by the petitioners. Various steps thereafter taken for recovery of duty are set out. The respondent No.4 had rejected the contention of the petitioners that the casting is not marketable product. In para ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It is now a well settled proposition of law that if an order is nullity then it is invalid and its invalidity can be set up anywhere and everywhere when such order is sought to be executed or enforced. Gainful reference may be made to the judgment of the Supreme Court in Mohd. Nooh (supra). We may only reproduce the following paragraph:-""Likewise in Khurshed Modi v. Rent Controller, Bombay it was held that the High Court would not refuse to issue a writ of certiorari merely because there was a right of appeal. It was recognized that ordinarily the High Court would require the petitioner to have recourse to his ordinary remedies, but if it found that there had been a breach of fundamental principles of justice, the High Court would ce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oner who has allowed the time to appeal to expire or has not perfected his appeal e.g. by furnishing security required by the statute, should it then be laid down as an inflexible rule of law that the superior court must deny the writ when an inferior court or tribunal by discarding all principles of natural justice and all accepted rules of procedure arrived at a conclusion which shocks the sense of justice and fair play (-9-) merely because such decision has been upheld by another inferior court or tribunal on appeal or revision?" In the instant case admittedly before quantifying the duty, the petitioners were not granted hearing and as respondent No.4 was acting in a quasi judicial capacity, in our opinion the order suffers from violati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t drawn the attention of the respondent No.4 to the same, a duty was cast on respondent No.4 to consider the said notifications as they were relevant for the purpose of assessment. Ignoring relevant documents would also result in error of law. There has, therefore, been a failure by Respondent No.4, in exercising his jurisdiction.
11. In our opinion and on the facts of this case this petition will have to be allowed by quashing the order and remitting the matter back to the respondent No.4 to consider afresh the assessment of duty bearing in mind the Notifications issued from time to time.
12. Rule made absolute in terms of para.11. In the circumstances of the case there shall be no order as to costs. X X X X Extracts X X X X X X X X Extracts X X X X
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