TaxTMI 
TaxTMI 
2005 (2) TMI 157
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....-456/MP/98-P dated 23-12-1998 & 18-3-1999 (Annexure "C" collectively) regarding Annual Production 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) ....
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....ty of the petitioner's factory in accordance with the principle laid down by the Apex Court. While fixing the Annual Production Capacity in respect of specified fabrics manufactured by an independent processor under Section 3(a) of Central Excise 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/cha....
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....PC could not be challenged before the Tribunal. It was alleged that, against fixation of APC, no appeal lies and hence, the only recourse the petitioner can avail of is by way of the present petition. Alternatively, it was urged that the decision of 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 Commis....
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....on of a Full Bench of the Tribunal in favour of the petitioner, on the basis of which the petitioner could have initiated appropriate proceedings seeking necessary relief, but the petitioner has failed to do so. 9.Mr. Dave thereafter has placed reliance 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 peti....
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....nces. 11.The contention regarding determination order being in violation of the principles of natural justice and thus being a void order, would require consideration provided the petition was brought before the Court within the period of limitation. It 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 befo....