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TMI Blog2016 (8) TMI 384X X X X Extracts X X X X X X X X Extracts X X X X ..... ore, the answer is affirmative and requires to be adjudicated afresh, by the Tribunal. - Matter remanded back - C.M.A. No. 3301 of 2011 - - - Dated:- 29-7-2016 - S. Manikumar And D. Krishnakumar, JJ. For the Appellant : Mr.V.Sundareswaran Senior Standing Counsel for Central Ex. For the Respondents : No Appearance JUDGMENT ( Judgment of the Court was made by S. Manikumar, J. ) Though the first respondent M/s.Adhavan Processor (P) Ltd has been served and their name has been shown in the cause list, they have not chosen to appear either in person or through counsel. 2. Facts deduced from the material records are that M/s.Adhavan Processor (P) Ltd, Erode, are processors of textile fabrics and were paying duty under S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation of the annual production capacity and consequential rate of duty, the assessee/first respondent has filed two appeals in Nos.341-342/2003 before the Commissioner of Central Excise (Appeals), Salem. A perusal of the common order passed by the appellate authority dated 19.12.2003 shows that when the said appeals came up for hearing, submission has been advanced that W.P.No.3891/2000 filed by the first respondent/assessee challenging the Notification Nos.36/98 Central Excise and 42/98 Central Excise, both dated 10.12.1998 made by the Ministry of Finance was allowed in their favour holding the impugned notifications as invalid and inoperative. On that score, the first respondent/assessee prayed to set aside the orders of the jurisdictiona ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under other notifications, the ACP orders issued by the Lower Authority, challenged in the present appeals are no longer valid and the same are set aside. 4. Aggrieved by the aforesaid common order of the Commissioner of Central Excise (Appeals), Salem, Commissioner of Central Excise, Salem has filed an appeal No.E/431/2004. After hearing the representation of the department and the records, Customs, Excise and Service Tax Appellate Tribunal, Chennai, has taken note of the fact that being aggrieved by the order made in W.P.No.3891/2000 dated 20.02.2002, the Revenue Department has filed a writ appeal in W.A.No.640 of 2003 and that the same has been dismissed for non-prosecution vide judgment dated 18.07.2008. In the above said circumsta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d for restoration is not known. However, inviting the attention of this court to the decision of the Hon'ble Supreme Court in M/s.Shree Bhagwati Steel Rolling Mills vs. Commissioner of Central Excise Anr. reported in 2016 (3) SCC 643, Mr.V.Sundareswaran, learned Senior Standing Counsel for the appellant submitted that, having regard to the dictum laid down by the Apex Court in the aforesaid judgment upholding compounded levy scheme, order made in W.P.No.3891/2000 dated 20.02.2002, striking down the notification as invalid and inoperative, should be treated as a nullity. 8. As we have already observed, Civil Miscellaneous Appeal is yet to be admitted, Substantial Questions of Law raised by the appellant as it stood, does not merit a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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