9911796707
TMI Blog2011 (9) TMI 451X X X X Extracts X X X X X X X X Extracts X X X X ..... doubted in the affidavit in reply. - Decided in favor of assessee. - WRIT PETITION NO.6418 OF 2011 - - - Dated:- 7-9-2011 - DR. D.Y. CHANDRACHUD A.A. SAYED, JJ. Mr.V.Shridharan, Senior Advocate with Mr.Prakash Shah and Ms.Charanya Lakshmikumaran i/b. PDS Legal for the Petitioner. Mr.Pradeep S.Jetly for the Respondent. ORAL JUDGMENT (PER DR.D.Y.CHANDRACHUD, J.): Rule; by consent returnable forthwith. With the consent of Counsel and at their request the Petition is taken up for hearing and final disposal. 2. The Petitioners engage inter alia in the importation and sale of goods such as Borax Pentahydrate. The goods imported are sold to customers across the country. The Petitioners submitted an application on 21 January 2002 for obtaining Central Excise registration of their premises. The Third Respondent the Superintendent of Central Excise, RangeII, DivisionH, Mumbai IV issued a registration certificate on 25 January 2002. At the time of registration, the Petitioners were carrying on business from the following address: Plot No.25A, Besant Street, Santacruz (West), Mumbai400 954. The Petitioners filed Central Excise returns be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly on 28 September 2010, the Petitioners made an application for registration of the new premises. A certificate of registration has been granted in January 2011. 5. These proceedings have been instituted under Article 226 of the Constitution seeking: (i) A declaration that the registration which has been granted to the Petitioners in respect of the new premises is valid with effect from 8 July 2004; (ii) For an appropriate writ setting aside a communication issued in May 2011 by the Second Respondent to the Assistant Commissioner of Central Excise, calling for the reversal of the Cenvat credit availed of on the ground that the invoices were issued from premises which were not registered under Rule 9 of the Central Excise Rules; (iii) A writ declaring that the 27 invoices, more specifically stated in Exhibit 'F', are valid invoices for the purposes of availment of credit by the buyers of the goods; and (iv) For an appropriate writ directing the First and Second Respondents to either amend the existing Registration Certificate or to issue a fresh Registration Certificate effective from 8 July 2004 in respect of the new premises. 6. An affidavit in reply has been filed in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ise uses excisable goods, shall get registered. Under subrule (2) of Rule 9, the Central Board of Excise and Customs may, by notification and subject to such conditions or limitations as may be specified in the notification, specify the persons or class of persons who may not require such registration. Subrule (3) stipulates that the registration under subrule (1) shall be subject to such conditions, safeguards and procedure as may be notified by the Board. In exercise of the powers conferred by Rule 9, the Central Board of Excise and Customs has issued a notification, Notification No.35/2001CE( NT) on 26 June 2001 (as subsequently amended) to specify the conditions, safeguards and procedures for registration of a person under the Rules. The notification provides that every person specified under subrule (1) of Rule 9, unless exempted from doing so by the Board under subrule (2), shall get himself registered with the jurisdictional Deputy or Assistant Commissioner of Central Excise by making an application in the form specified in AnnexureI, IA or IB, as the case may be. If the person has more than one premises requiring registration, separate registration has to be obtained for ea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dictional Superintendent of Central Excise recording that they had shifted their office to new premises. The address of the new premises was mentioned in the aforesaid communication and the Superintendent was requested to make a note of the new address. The Petitioners continued to file their returns on the basis of the erstwhile registration number which was assigned to them in respect of the earlier business premises. As a matter of fact, it has emerged from the record that even the Excise Department continued to treat the Petitioners as being registered under Rule 9(1) and communications were addressed to them at the new premises. Sometime in 2010, when the Petitioners imported a consignment of Borax Pentahydrate an objection was raised by the Excise authorities on the ground that the Petitioners had issued Cenvatable dealer invoices on an erroneous basis that their erstwhile registration would continue to govern the business in the new premises. The Petitioners thereupon applied for a fresh registration on 28 September 2010 and a registration certificate has been issued to them in January 2011. 11. In assessing the facts of this case, it must be noted that in the affidavit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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