9911796707
TMI Blog2008 (1) TMI 22X X X X Extracts X X X X X X X X Extracts X X X X ..... manufactured are exempt from Central Excise Duty. The Respondent Authorities by order dated 13 th September, 2000 in respect of the castings manufactured by the petitioners held that the castings are marketable goods. Further held that they are classifiable under C.H.H. 73.25 and 74.19 (depending on the metal used) and, therefore, the classification was correct. Various other questions were considered and in conclusion proposed quantify the duty and consequently directed the assessee to furnish certain data. Another order was passed to the similar effect on 14 th September, 2000. 3. Pursuant to the said orders the petitioner furnished the necessary information. By order dated 11 th November, 2004 the respondent No.4 demanded duty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Respondents a reply has been filed by respondent No.4 setting out their case. One of the contentions raised is that considering that the Appeal has been dismissed as it was filed beyond the prescribed period this Court should not exercise its extra ordinary jurisdiction. In paragraph 7 it is set out that during the relevant period the pumps were only exempted from payment of central excise duty by virtue of notification dated 28 th February, 1993 or were chargeable to Nil rate of duty by the Tariff Entry itself. The petitioner it is contended has not paid any central excise duty on the castings of cast iron and gun metal and spare parts manufactured by the petitioners and the said goods were consumed captively in the manufacture of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exhausted the same and/or the Tribunal for some reason has declined to entertain the Appeal, this Court normally does not interfere in the exercise of its extra ordinary jurisdiction unless the order is a nullity at law. It is now a well settled proposition of law that if an order is nullity then it is invalid and its invalidity can be set up anywhere and everywhere when such order is sought to be executed or enforced. Gainful reference may be made to the judgment of the Supreme Court in Mohd. Nooh (supra). We may only reproduce the following paragraph :-""Likewise in Khurshed Modi v. Rent Controller, Bombay it was held that the High Court would not refuse to issue a writ of certiorari merely because there was a right of appeal. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pon to exercise judicial or quasi-judicial functions and not to relegate the petitioner to other legal remedies available to him and if the superior court can in a proper case exercise its jurisdiction in favour of a petitioner who has allowed the time to appeal to expire or has not perfected his appeal e.g. by furnishing security required by the statute, should it then be laid down as an inflexible rule of law that the superior court must deny the writ when an inferior court or tribunal by discarding all principles of natural justice and all accepted rules of procedure arrived at a conclusion which shocks the sense of justice and fair play (-9-) merely because such decision has been upheld by another inferior court or tribunal on appeal or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the power pump as well as parts thereof which are used for manufacturing of pumps have been exempted from levying of excise duty since 1978. 10. Considering the notifications even if the petitioners had not drawn the attention of the respondent No.4 to the same, a duty was cast on respondent No.4 to consider the said notifications as they were relevant for the purpose of assessment. Ignoring relevant documents would also result in error of law. There has, therefore, been a failure by Respondent No.4, in exercising his jurisdiction. 11. In our opinion and on the facts of this case this petition will have to be allowed by quashing the order and remitting the matter back to the respondent No.4 to consider afresh the assessmen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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