TMI Blog2005 (6) TMI 47X X X X Extracts X X X X X X X X Extracts X X X X ..... May 2003 issued by respondent No. 3 for further attachment of property (Annexure "C"). 2. The petitioner, a Partnership Firm, states that it is carrying on business of re-rolling and is manufacturing iron bars from ships' scrap. The petitioner commenced business on 7th December 1983 and admittedly was manufacturing iron bars from ships' scrap without being licensed under the provisions of the Central Excise Act, 1944 (the Act) and Central Excise Rules, 1944 (the Rules). Respondent No. 2 issued show cause notice dated 3rd December 1988 wherein it was specifically stated that the petitioner had engaged in manufacture of various items falling under erstwhile Tariff Item No. 25(9) (i) and 25(9)(ii) of the Tariff Act up till 27th February 198 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alty of Rs. 8,25,000/- under Rule 173Q(1) of the Rules. 4. The petitioner carried the matter in appeal before the Tribunal, who vide its order dated 17th October 2001, held that the issue was squarely covered by decision in case of Jay Mahakali Re-rolling Mills v. Commissioner of Central Excise and hence, by applying ratio of the said decision, the appeal came to be dismissed. 5. It is an accepted position that the order in case of Jay Mahakali Re-rolling Mills, dated 17th October 2000 was challenged by way of Special Civil Application No. 2816 of 2001 before this High Court and the petition was dismissed by an oral order made by this Court on 15th January 2002 (Annexure "H"). 6. Ms. Megha Jani, the learned advocate appearing on behal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xercise in light of the facts of the case. It is an admitted position that, before the Tribunal, there was no appearance on behalf of the petitioner and the petitioner had merely requested for an adjournment stating that the order of Tribunal in case of Jay Mahakali Re-rolling Mills had been challenged before the High Court of Gujarat and the matter was pending. The Tribunal has turned down the request for adjournment and proceeded to decide the matter by following the decision in case of Jay Mahakali Re-rolling Mills. Admittedly, the challenge to Tribunal's order in case of Jay Mahakali Re-rolling Mills, has failed before this Court and the matter as of today is stated to be pending before the Apex Court. In the circumstances, in absence o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itioner that the impugned order of Tribunal (Annexure "A") suffers from infirmity at least to the aforesaid extent, merits acceptance. Mr. Y. N. Ravani, the learned Additional Central Government Standing Counsel has not been able to submit anything to contest this. Accordingly, the Tribunal's order dated 17th October 2001 (Annexure "A") is quashed and set aside only to the limited extent as relatable to item at Sr. No. 6 of the table in the impugned show cause notice for the period 27-3-1987 to 31-8-1987 and the appeal of the petitioner is restored to file of the Tribunal for this limited purpose. The Tribunal shall, after hearing both the sides, apply the decision in case of Jay Mahakali Re-rolling Mills, after properly ascertaining the fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssions of the assessee, hedged its findings by the aforesaid observations and restored the matter to the file of the Commissioner. 15. Reliance on decision in case of L.G. Industries v. CCE, Rajkot, 2002 (148) E.L.T. 43 (Tribunal) = 2002 (53) RLT 356 also cannot carry the case of the petitioner any further considering the finding recorded in paragraph No. 6 that, "the inputs received were re-rollable material obtained by breaking up of ships and this factual stand had not been recognizes that the one of the sources for receipt of inputs was ship breakers." 16. Therefore, reliance on various decisions is not supported by any factual foundation and each one of the decisions cited turned on the individual facts obtaining in each of those c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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