9911796707
TMI Blog2006 (12) TMI 442X X X X Extracts X X X X X X X X Extracts X X X X ..... e ROM application :- "(a) That the impugned order passed by the appellate Tribunal is without appreciating the facts and circumstances of the case in its true and correct perspective. That the impugned order is passed without applying the correct legal position and without appreciating the evidence and accordingly requires to be quashed and set aside. (b) that the impugned order is passed in defiance of the principles of natural justice inasmuch the same is an ex parte order. The applicant though requested for specific hearing, the same was not granted to them and the order has been passed ex parte only on the arguments and submissions of the departmental representative. On this ground only, the impugned order requires to be qua ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts to manufacture is illegal and contrary to the facts and evidence on record. In fact, the provisions of Rule 173-h specifically allow manufacturers like the applicant to repair, refine, reprocess etc. any such defective goods cleared by them by permitting re-entry of the same in the factory premises and after such process removed the same without payment of duty provided no such process has taken place which amounts to manufacture. Firstly, therefore, it is necessary to refer to and understand the provisions of Rule 173-h of the Central Excise Rules, 1944 which are as under :- …………………………………………….. (e) Now, resorting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has not discussed any procedure or factual background in this regard as adopted by the applicant and without any such reasons or findings straight away concluded that the applicant's activity amounts to impugned order suffers also from the vice of being a non-speaking order without there being any single justification or reason to conclude so. Therefore, on this ground also the impugned order deserves to be quashed and set aside. (h) That the impugned order is further vitiated and improper inasmuch as the same is passed relying upon rather irrelevant cases and their findings without properly matching or applying the same to the facts of the present case. The Tribunal has sought it to refer to and to rely upon cases which have no dire ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for such process would be of no marketability or use then if both these tests are satisfied the activity undertaken cannot be sale to be manufacture. …………………………………………….. (j) That the order passed by the Commissioner Appeals, Ahmedabad taking into consideration the entire factual and legal position is thoroughly justified and proper as can be seen from a bare reading of the order. There is valid reasoning given in the order to uphold the contentions of the present respondent in concluding the activity of remaking of warranty claimed rejected batteries is proper and legal as per the provisions of erstwhile Rule 173-h a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adopted. Therefore, this ground does not warrant any interference and requires to be rejected." 3. It is seen from the prayer portion of the application that the applicant/appellant has sought for to review and recall the order dated 19-12-2005. Learned Counsel has also relied upon the following case laws :- (a) J.K. Synthetics v. CCE - 1996 (86) E.L.T. 472 (S.C.); (b) Sanghani Bright Steel v. UOI - 2005 (186) E.L.T. 279 (Guj.); (c) Capital Ferro Alloys Pvt. Ltd. v. CCE, Jaipur - 2004 (176) E.L.T. 241 (Tri.-Del); (d) Ganesh Aeropack v. CCE, Madurai - 2002 (149) E.L.T. 1455 (Tri.-Chennai); (e) Mayank Electrod Ltd. v. CCE, Daman - 2006 (198) E.L.T. 548 (Tri-Mum); (f) Reliance Storage Energy & Systems Pvt. Ltd. v. CCE, Calcutta-III ..... X X X X Extracts X X X X X X X X Extracts X X X X
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