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TMI Blog2005 (2) TMI 157X X X X Extracts X X X X X X X X Extracts X X X X ..... duction Capacity of the petitioners' factory with a direction to the Commissioner of Central Excise, third respondent herein, to determine APC in accordance with the judgment of the Hon'ble Supreme Court in case of CCE, Jaipur-II v. SPBL Ltd. - 2002 (146) E.L.T. 254 (S.C.); (B) That Your Lordships may be pleased to issue a Writ of Certiorari or any other appropriate writ, direction or order, quashing and setting aside OIA No. 223 to 232/2004 (Ahd-I) dated 31-8-2004 (Annexure "E") passed by the Commissioner of Central Excise (Appeals), Ahmedabad, second respondent herein; (C) Pending hearing and final disposal of the present petition, Your Lordships may be pleased to direct the respondents, their servants and agents to restit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, 1944 read with Hot Air Stenter Independent Processors Annual Capacity Determination Rules, 1998, the respondent Commissioner included galleries while working out the Annual Production Capacity. Accordingly, the petitioner was called upon to pay compounded levy on the basis of the aforesaid working. It is an admitted position that the petitioner did not challenge the aforesaid decisions (Annexure "C" collectively). 4.According to Mr. Dave, the inclusion of galleries as part of a stenters/chambers is bad in law in light of the aforesaid decision rendered by Apex Court and hence, the petitioner is entitled to refund of the excess amount of duty paid under protest. The petitioner's claim for refund was rejected by the Assistant Commissio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Commissioner fixing the APC is in violation of principles of natural justice and hence, the order is void ab initio. Therefore, according to Mr. Dave, the ratio of decision in case of Nawabkhan Abbaskhan v. State of Gujarat, AIR 1974 SC 1471 is applicable to the facts of the case and the petitioner deserves an opportunity of hearing. Lastly, it was urged that similar petitions have been filed and admitted by this Court against the decision of the Appellate Tribunal rendered in case of Commissioner v. Gopi Synthetics Ltd. (supra) and connected matters. 6.As already noted, the petition challenges the determination orders whereunder APC came to be fixed by respondent No. 3 on 23rd December 1998 and 18th March 1999. Even if for the sake ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce on two unreported decision of this Court (Annexures "A" and "B"), which have been rendered on 6th May 2004 and 12th August 2002. The petitioner has chosen not to approach this Court even after the aforesaid decisions were rendered. In the circumstances, there is no cause shown for entertaining the petition despite the same being barred by delay and laches. 10.It is an admitted position that the APC was determined on the basis of information supplied by the petitioner. In fact, the petitioner submitted a declaration in December 1998. According to the petitioner, in the said declaration, the dimensions of galleries were not declared, as according to the petitioner, galleries were not to be considered while determining the Annual Product ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t was urged that a void order could be challenged at any point of time as laid down by the Apex Court in case of Nawabkhan Abbaskhan (supra). It goes without saying that any decision of a Court has to be read in the context of the controversy which is brought before the Court. The observations on which reliance has been placed have been rendered in the context of fundamental freedom of a citizen, namely, fundamental right of the accused under Article 19 of the Constitution, in the case before the Apex Court in context of externment order under the provisions of Bombay Police Act, 1951. The said decision, therefore, cannot assist the case of the petitioner. 12.The last contention urged on behalf of the petitioner was that, in similar case, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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