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TMI Blog2020 (4) TMI 179X X X X Extracts X X X X X X X X Extracts X X X X ..... he petition, we do not propose to relegate the petitioner to avail alternative remedy, as suggested by learned counsel for the respondent - Petition allowed. - R/Special Civil Application No. 16900 of 2018 - - - Dated:- 8-8-2019 - Mr. Justice S.R. Brahmbhatt And Dr. Justice A. P. Thaker For the Petitioner : Amal Paresh Dave, Mr Paresh M Dave For the Respondent : DS Aff. Not Filed (N), Mr Py Divyeshvar, Ms Niyati Vaidya, Mr. Parth H Bhatt ORAL ORDER (PER : HONOURABLE MR.JUSTICE S.R.BRAHMBHATT) 1. This petition is taken out under Article 226 of the Constitution of India with following prayers:- 14. .. (A) That Your Lordships may be pleased to issue a writ of Certiorari or any other appropriate writ, di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Yarns (POY), Fully Drawn Yarns (FDY) and texturized Yarns. POY and FDY produced in the petitioner s factory are used within the factory as captive consumption for manufacture of texturized yarn, which are removed from the factory on payment of appropriate excise duty. On 16.3.1995, the Central Government issued a notification granting exemption from excise duty to all the goods manufactured in a factory if consumed captively within the factory for production of final product. The same scheme was continued by another Notification dated 17.5.2003, therefore, the petitioner was also exempt from payment of excise duty. 3.2 On 27.2.2007, the Commissioner (Appeals), Ahmedabad passed an order and held that above Notification was not applicable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... geable to National Calamity Contingency Duty and to restore OIA No.98/2009(AhdI) CE/ID/Commr(A)/Ahd dated 27.05.2009 [AnnexureH]. At the outset, learned counsel for the petitioners fairly brought to our notice a decision of the Uttarakhand High Court in the case of Bajaj Auto Ltd. v. Union of India [2015(317) ELT 12] wherein denial of Area Based exemption from National Calamity Contingent Duty and recovery thereof is held permissible by upholding demand made in various impugned orders. Learned counsel for the petitioner invited our attention to Article 271 of the Constitution of India and decision of the Apex Court in the case of SRD Industries Pvt. Ltd. v. Commissioner of Central Excise, Guwahati [2017(355) ELT 481 (SC)] in which Educ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay of Tax Appeal and not in writ petition. 6. We are of the view that the ratio of the Supreme Court, when stated to govern the case and the petition was filed prior to the judgment rendered by the Supreme Court and considering the contentions raised in the petition, we do not propose to relegate the petitioner to avail alternative remedy, as suggested by learned counsel for the respondent. We are of the view that the ratio of the Supreme Court judgment, as stated herein above, is not in dispute and would squarely govern the case. The petition is, therefore, required to be allowed. Orders accordingly. The impugned order No.A/11368/2018 dated 5.7.2018 ( Annexure- J ) passed by the CESTAT, Ahmedabad is quashed and set aside. - - TaxTM ..... X X X X Extracts X X X X X X X X Extracts X X X X
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