-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 7828 OF 2008 M/s. Hiren Aluminium Limited ...Petitioners versus Union of India and others ...Respondents Mr. V. Sridharan with Mr. Prakash Shah, instructed by M/s. PDS Legal for the petitioners. Mr. M.I. Sethna with Mr. J.B. Mishra for the respondents. CORAM: P.B. MAJMUDAR & J.P . DEVADHAR, JJ. DATE: DECEMBER 18, 2008. P.C. By filing this petition, the petitioners have challenged the order passed by the Member (Central Excise) dated 24th November, 2008. By the impugned order, the facility of monthly payment of excise duty by M/s. Hiren Aluminium Limited (Unit-II), petitioners herein, as provided under Rule 8 (1) of the Central Excise Rules, 2002, was ordered to be withdrawn and the petitioners were required to pay excise duty for each consignment at the time of removal of goods with effect from 1st December, 2008 to 31st May, 2009. It is also ordered that payment of excise duty by the petitioners by utilisation of CENVAT credit as provided under Rule 4 (4) of the CENVAT Credit Rules, 2004, was ordered to be stopped with effect from 1st December, 2008 -2- to 31st May, 2009, during which period the petitioners were required to pay excise duty without utilizing CENVAT credit. However, the petitioners were permitted to avail CENVAT credit during the said period which could be utilized for payment of duty after aforesaid period was over. 2. During the course of hearing, it has been pointed that at the time of sending proposal by the Chief Commissioner of Central Excise, Vadodara, a proposal was sent for withholding CENVAT credit for three months and instead the order is passed withholding the same for six months. The grievance projected by the petitioners is that hearing was given to them by the Chief Commissioner of Central Excise, Vadodara, but the impugned order is passed by the Member (Central Excise), Govt. of India. It is submitted that even though the proposal made by the Chief Commissioner of Central Excise, Vadodara, was for withholding CENVAT credit for three months, ultimately the authority has passed the order withholding the same for six months. In this view of the matter, the petitioners should have been given hearing by the concerned authority. Mr. Sethna, learned counsel appearing for the respondents, on the other hand supported the order by submitting that once the hearing is given by the Chief Commissioner, Vadodara, it is not necessary for the authority to give hearing again to the petitioners. Reliance in this connection has been placed by the learned counsel for the respondents upon the decision of the Gujarat High Court in the case of Dhariyal Chemicals vs. Union of India and others, decided on 11th -3- July, 2008. 3. However, considering the fact that the order for withdrawal of CENVAT credit has been ordered for six months as against the proposal of the same for three months by the Chief Commissioner, learned counsel for the respondents submitted that without treating it as a precedent, as a exceptional case, the department has no objection if it is ordered that the petitioners should be heard by the Member (Central Excise), Govt. of India, New Delhi, in view of the peculiar facts and circumstances of this case. Learned counsel appearing for the petitioners states that till the fresh order is passed, the petitioners may be permitted to utilise the CENVAT credit by keeping the balance of Rupees One crore intact from the accumulated credit for all the time. 4. Considering the aforesaid aspect of the matter, the impugned order dated 24th November, 2008, which is annexed at Exhibit-A to the petition, is set aside with a direction that the Member (Central Excise), Govt. of India, New Delhi, shall hear the petitioners and pass an appropriate order again in accordance with law, latest within a period of three weeks from today. However, it will be open to the Member (Central Excise) to take a decision earlier than the stipulated period. The petitioners to co-operate with the Member (Central Excise) and will not seek any adjournment in any manner and shall remain present on the relevant day with the full record of -4- the case. However, the petitioners may be informed well in advance the date on which they are required to attend the office. 5. The petition is accordingly disposed of subject to the aforesaid directions. It is clarified that this order is passed in view of the peculiar facts and circumstances of the case and it is not to be treated as a precedent in any other case. By setting aside the impugned order, it should not be construed that this Court has expressed its opinion on the merits of the case in any manner and all the questions raised and arguments advanced are kept open for the determination of the Member (Central Excise). This order is passed without prejudice to the rights and contentions of both the parties. 6. It is clarified that at the time of passing fresh order, if the order is adverse to the petitioners, the time consumed from today till the order is passed could be excluded as the matter was subjudice before this Court. P. B. MAJMUDAR, J. J.P. DEVADHAR, J.