9911796707
TMI Blog2019 (6) TMI 876X X X X Extracts X X X X X X X X Extracts X X X X ..... 2. From the earlier proceedings made by predecessor Hon'ble Judges, which form part of the case file placed before me, it comes to light that instant writ petition has not been admitted, and Revenue counsel has accepted notice on behalf of respondents at the admission stage. As of today, Revenue counsel has also filed a counter affidavit dated 29.10.2018. Therefore, pleadings are complete. 3. With consent of both the aforesaid counsel before this Court today, main writ petition itself is taken up, heard out and disposed of. 4. The scope of the instant writ petition is limited and the entire matter turns on a very narrow compass. 5. Subject matter is 'Tunnel Boring Machines' ['TBM' for the sake of brevity] used in Me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the aforesaid SCN and reply to the same, matter was adjudicated upon and the Deputy Commissioner of Central Excise being the original authority, passed an order dated 10.10.2016 being ORDER-IN-ORIGINAL No:177/2016(R). 8. Vide this order, the original authority rejected the rebate claimed by the writ petitioner. Suffice to state that the original authority passed the order on the basis that the aforesaid activity of the writ petitioner is not a manufacturing activity within the meaning of Section 2(f) of CE Act. 9. Writ petitioner carried this in appeal to the statutory Appellate Authority namely, Commissioner Appeals-II, Chennai, who is respondent No.2 in the instant writ petition before this Court. In the interregnum, on 11.05.2017, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommittee of Chief Commissioners. Proceedings of the committee of Chief Commissioners has been placed before this Court and the most relevant portion of the same reads as follows: 'The Adjudicating Authority had held that each of the Tunnel Boring Machine (TBM) used in Metro Rail is a unique one and that the imported machine was sought for salvage value and not the technical capability. Thus had dropped the demand for denial of cenvat credit availed on the duty paid at the time of import and the duty paid on certain other parts/services for refurbishing the TBM for a given function. Further, this being a periodical notice, the earlier notice was studied, wherein, also the demand was dropped on "revenue neutrality" and without going i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ords, the aforesaid order dated 11.05.2017 and acceptance of the same by the committee of Chief Commissioners has not been adverted to or addressed, though it was placed before the Appellate Authority. 13. It is on the aforesaid basis / in the aforesaid backdrop that instant writ petition has been filed by the writ petitioner. 14. At the time of admission, learned Revenue counsel took a preliminary objection with regard to maintainability of the writ petition, citing alternate remedy inter alia by pointing out that a further appeal is available to the writ petitioner against the impugned order. It was pointed out that the further appeal is available under Section 86 of the Finance Act to 'Customs, Excise and Service Tax Appellate Trib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xcise. The assessee would state that during the course of hearing, their counsel appeared before the Commissioner (Appeals) and brought to his notice about the Order-in-Original dated 11.5.2017 wherein it was concluded that the activity done by the petitioner amounts to manufacture in terms of Section 2(f) of the said Act and further proceedings pursuant to the show cause notice dated 02.2.2016 were dropped. 4. The grievance of the petitioner is that in spite of specifically bringing to the notice of the Commissioner (Appeals) about the order dated 11.5.2017 and the fact that the same has been accepted by the Committee of Commissioners headed by the Chief Commissioner, the Commissioner (Appeals) did not even refer to the order dated 11.5. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the 2nd respondent, but the same has not been adverted to in the impugned order. Therefore, it follows as a natural and indisputable sequitur that the 2nd respondent has passed the impugned order, dated 31.10.2017, without adverting to the aforesaid proceedings, wherein it has been held that the aforementioned activity of the writ petitioner is in fact a manufacturing activity within the meaning of Section 2(f) of CE Act. 20. In the light of the aforesaid trajectory which the hearing has taken today, the scope of the writ petition has become extremely narrow. 21. All that remains is, the Commissioner (Appeals-II) (2nd respondent) has to necessarily be directed to have a relook of the entire matter in the light of the aforesaid order-in-o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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