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2016 (6) TMI 874 - MADRAS HIGH COURT

2016 (6) TMI 874 - MADRAS HIGH COURT - TMI - Demand of duty - maintainability of writ petition - alternative appellate remedy - request to permit the appellant/petitioner to cross examine the Chemical Examiner, whose report has been relied on in the order confirming the demand - Chemical Examiner had given the report stating that the subject product is not fertilizer. - Held that:- When there is an exclusion of the Chemical Examiner's report, by an order, which was one of the factors taken into .....

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erated that the impugned order in original dated 01.09.2015, passed by the Commissioner of Central Excise, Chennai II Commissionerate, Chennai, could still be sustained, without relying on the Chemical Examiner's report. - Such being the position, we are of the view that the appellant/petitioner has not made out a case for interference. Statute provides for an appeal remedy. As per Section 35-B of the Central Excise Act, a statutory appeal ought to have been filed within three months from th .....

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order made in W.P.No.30771 of 2015 dated 15.03.2016, by which the Writ Court has directed the appellant/petitioner to file an appeal before the appellate authority against the order in original dated 01.09.2015, passed by the Commissioner of Central Excise, Chennai II Commissionerate, Chennai. The Writ Court has further directed the appellate authority to entertain the appeal without insisting on the question of limitation for the reason that the appellant/petitioner had approached this Court as .....

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o have given an opportunity to cross examine the Chemical Examiner, who had given the report stating that the subject product is not fertilizer. Reliance has been made to the decision reported in 2013 (295) ELT 195 (Mad.). According to the appellant, denying the opportunity of cross examination, is violation of the principles of natural justice. 4. Before the writ Court, responding to the above, Mr.A.P.Srinivas, learned Senior Standing counsel appearing for the respondent had submitted that the .....

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Chennai, could be sustained. Submission has also been made that the writ petition has been filed without availing the alternate statutory remedy of appeal. 5. Adverting to the abovesaid rival submissions, at paragraph No.6 in W.P.No.30771 of 2015 dated 15.03.2016, the writ Court has ordered as hereunder "6.Accordingly, I give liberty to the petitioner to file an appeal as against the impugned order dated 01.09.2015 and also direct the appellate authority to decide the appeal, on merits and .....

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; 6. Though, Mr.Hari Radhakrishnan, learned counsel for the appellant/petitioner contended inter alia that the writ Court ought to have setaside the order in original dated 01.09.2015, this Court is not inclined to accept the said contentions, for the reason that the main grievance of the appellant/petitioner was that without providing an opportunity to cross examine the Chemical Examiner, whose report has been relied on, an adverse order dated 01.09.2015, has been passed. However, it could be s .....

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ical Examiner's report, taken note of, for arriving at the conclusion, as to whether the subject product is fertilizer or not. In short, the Writ Court had directed the appellate authority not to rely on the Chemical Examiner's report. 7. When there is an exclusion of the Chemical Examiner's report, by an order, which was one of the factors taken into consideration for arriving at the conclusion as to whether the subject product is fertilizer or not, in normal circumstances, one woul .....

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