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TMI Blog2019 (6) TMI 876X X X X Extracts X X X X X X X X Extracts X X X X ..... ies as a manufacturing activity within the meaning of 2(f) of CE Act and acceptance of the same by the committee of Chief Commissioners. A direction is given to the 2nd respondent to hear the appeal afresh in accordance with law, after giving opportunity of personal hearing to the writ petitioner - Petition allowed by way of remand. - W.P.No.2139 of 2018 And W.M.P.No.2664 of 2018 - - - Dated:- 6-6-2019 - Mr. Justice M. Sundar For the Petitioner : Mr.N.Viswanathan For the Respondents : Mr.A.P.Srinivas Senior Panel counsel ORDER Mr.N.Viswanathan, learned counsel on record for the sole writ petitioner and Mr.A.P.Srinivas, learned Senior Panel counsel on behalf of both the respondents are before this Court. To be noted, there are two respondents in the instant writ petition and both respondents are official respondents. 2. From the earlier proceedings made by predecessor Hon'ble Judges, which form part of the case file placed before me, it comes to light that instant writ petition has not been admitted, and Revenue counsel has accepted notice on behalf of respondents at the admission stag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e original authority passed the order on the basis that the aforesaid activity of the writ petitioner is not a manufacturing activity within the meaning of Section 2(f) of CE Act. 9. Writ petitioner carried this in appeal to the statutory Appellate Authority namely, Commissioner Appeals-II, Chennai, who is respondent No.2 in the instant writ petition before this Court. In the interregnum, on 11.05.2017, in proceedings bearing ORDER-IN ORIGINAL No.52/2017, the original authority, in identical facts and circumstances held that the aforesaid activity amounts to manufacture within the meaning of Section 2(f) of CE Act and dropped the proceedings pursuant to the SCN therein. Most relevant part of that order is contained in paragraphs 4.11 and 5 and the same read as follows: '4.11 In conclusion I find that: ● Every TBM is uniquely designed for a project-specific function. ● Once a TBM has completed the function it had been designed for, it is bought back for salvage value and not functional capability. ● The fact that the imported machine is classified as a TBM does n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the earlier appeal of the department in the similar issue which is on appeal on the ground of revenue neutrality .' 11. Reverting to the appeal preferred by the writ petitioner, in the aforesaid order dated 11.05.2017, it was held that the aforesaid activity of the writ petitioner amounts to manufacturing activity within the meaning of Section 2(f) of CE Act and the acceptance of the same by the committee of Chief Commissioners was brought to the notice of the 2nd respondent, who is the Appellate Authority. 12. Notwithstanding the same being brought to the notice of the Appellate Authority, the 2nd respondent Appellate Authority has passed an order dated 31.10.2017 being ORDER-IN-APPEAL No.314/2017(CTA-II), completely ignoring and sidestepping the aforesaid position. In other words, the aforesaid order dated 11.05.2017 and acceptance of the same by the committee of Chief Commissioners has not been adverted to or addressed, though it was placed before the Appellate Authority. 13. It is on the aforesaid basis / in the aforesaid backdrop that instant writ petition has been filed by the writ petitioner. 14. At the ti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4. The grievance of the petitioner is that in spite of specifically bringing to the notice of the Commissioner (Appeals) about the order dated 11.5.2017 and the fact that the same has been accepted by the Committee of Commissioners headed by the Chief Commissioner, the Commissioner (Appeals) did not even refer to the order dated 11.5.2017 and passed the impugned Order-in- Appeal. 5. In the light of the above, this Court is, prima facie, satisfied that the writ petition can be entertained. Accordingly, there will be an order of interim stay. The learned Senior Standing Counsel for the Revenue is directed to get instructions. List on 15.2.2018.' 16. A perusal of the aforesaid proceedings reveals that the preliminary objection of the Revenue counsel regarding maintainability of the writ petition on the ground of alternate remedy has been negatived by this Court. It is not in dispute that preliminary objection being negatived, has not been assailed in any manner and the same has been given legal quietus. 17. Preliminary objection of alternate remedy and maintainability of the writ petition is now not available to the respond ..... X X X X Extracts X X X X X X X X Extracts X X X X
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