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2019 (8) TMI 678

..... has drawn our attention to the order of the Supreme Court in the case of Bajaj Auto Limited v. Union of India [2019 (3) TMI 1427 - SUPREME COURT] and submitted that ratio therein would govern the case of the petitioner. HELD THAT:- The ratio of the Supreme Court, when stated to govern the case and the petition was filed prior to the judgment rendered by the Supreme Court and considering the contentions raised in the petition, we do not propose to relegate the petitioner to avail alternative remedy, as suggested by learned counsel for the respondent - the ratio of the Supreme Court judgment is not in dispute and would squarely govern the case. Petition allowed. - R/SPECIAL CIVIL APPLICATION NO. 16900 of 2018 - 8-8-2019 - MR S. R. BRAHMBHATT .....

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..... y also please be granted. 2. Essentially, the order dated 5.7.2018 passed by CESTAT in A-11368/2018 is challenged with a requisite declaration that the petitioner would not be liable to pay the duty on account of National Calamity Contingent Duty and consequently, the order of 27.5.2009 also deserves to restored. 3. The facts, as could be gathered, are set out as under:- 3.1 The petitioner company is engaged in the business of manufacturing Partially Oriented Yarns (POY), Fully Drawn Yarns (FDY) and texturized Yarns. POY and FDY produced in the petitioner s factory are used within the factory as captive consumption for manufacture of texturized yarn, which are removed from the factory on payment of appropriate excise duty. On 16.3.1995, the .....

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..... . 4. Learned counsel for the petitioner invited the Court s attention to the order of this Court dated 30.10.2018, which reads under:- Heard Mr. Paresh Dave, learned counsel for the petitioners. In this petition, the petitioners have prayed to issue a writ of mandamus or any other appropriate writ, order or direction holding and declaring that POY produced and captively consumed within the factory of production by the petitioner was not chargeable to National Calamity Contingency Duty and to restore OIA No.98/2009(AhdI) CE/ID/Commr(A)/Ahd dated 27.05.2009 [AnnexureH]. At the outset, learned counsel for the petitioners fairly brought to our notice a decision of the Uttarakhand High Court in the case of Bajaj Auto Ltd. v. Union of India [2015 .....

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..... Today, learned counsel for the petitioner has drawn our attention to the order of the Supreme Court in the case of Bajaj Auto Limited v. Union of India reported in 2019 (366) ELT 577 (SC) and submitted that ratio therein would govern the case of the petitioner. Learned counsel for the respondent could not dispute the ratio in any manner, however, she has submitted that order of CESTAT needs to be challenged by way of Tax Appeal and not in writ petition. 6. We are of the view that the ratio of the Supreme Court, when stated to govern the case and the petition was filed prior to the judgment rendered by the Supreme Court and considering the contentions raised in the petition, we do not propose to relegate the petitioner to avail alternative .....

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