Writ Petition No. 2938 of 2015. Case: Jagat Alloys Pvt. Ltd. Vs Union of India. High Court of Bombay (India)

Case NumberWrit Petition No. 2938 of 2015
CounselFor Appellant: Shri Prabhakar K. Shetty, Advocate and For Respondents: Shri Pradeep S. Jetley and J.B. Mishra, Advocates
JudgesS.C. Dharmadhikari and G.S. Patel, JJ.
IssueCentral Excise Act, 1944 - Section 35C
Citation2016 (335) ELT 406 (Bom)
Judgement DateFebruary 01, 2016
CourtHigh Court of Bombay (India)


  1. This petition under Article 226 of the Constitution of India is being entertained in rather unusual circumstances. Very few dates and events have to be referred to for our ultimate order and direction.

  2. The first petitioner claims to be engaged in the activity of manufacture of Ferro Aluminium Alloy products at its factory at Khopoli. The final product manufactured by the Petitioner No. 1 is exigible to excise duty as far as raw materials or inputs are concerned. Cenvat credit of the duty paid on the said inputs was also admissible according to the Petitioner. However, the Revenue issued a show cause notice proposing to deny such credit and that is how two orders were passed on this show cause notice on 2 January, 2004 and 30 January, 2006.

  3. The petitioners preferred an appeal and that appeal in terms of the applicable law lies to the Customs, Excise and Service Tax Appellate Tribunal. The jurisdictional Tribunal is the West Zonal Bench at Mumbai. That appeal was heard on 10 October, 2014. The Tribunal pronounced its judgment but there was no unanimity. There was difference of opinion. The first order came to be pronounced by the Member-Judicial and he held that the Revenue could not establish and prove that availment of Cenvat credit on inputs is wrongful and illegal. However, the Member-Technical disagreed and passed a separate order.

  4. There was a rectification application filed stating that there is a mistake apparent and that needs to be rectified by the Tribunal. Surprisingly, on that, the Tribunal Members who had disagreed earlier, agreed on 11 September, 2015 and held that there is no mistake. The Tribunal dismissed the rectification application.

  5. We find that the learned counsel for the Petitioners has rightly relied upon page 145 of the paperbook. That indicates that there was a difference of opinion between Member-Judicial and Member-Technical. Together they agreed to place the matter before the President of the Tribunal for the President to refer the question or point of disagreement to a Third Member of the Tribunal.

  6. However, the said difference of opinion is recorded in the following terms:


    In view of the difference of opinion between Member (Judicial) and Member (Technical), the matter may be placed before the President to nominate Third Member to resolve the difference of opinion on the following point:-

    The evidence produced by Revenue is not sufficient to establish fraudulent...

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