THE HON’BLE SRI JUSTICE GODA RAGHURAM AND THE HON’BLE SRI JUSTICE N. RAVI SHANKAR W.P.No.25435 of 2011 Dated : 12-09-2011 BETWEEN : M/s. Nihil Refineries Limited, 1-8-663, Azambad Industrial Area, Hyderabad – 500 020, Rep. by its Director Mr. Akash Agarwal. …Petitioner AND 1. Customs, Excise and Service Tax Appellate Tribunal, South Zonal Bench, FKCCI-WTC building, K.G. Road, Bangalore – 560 009. 2. Deputy Commissioner of Customs, Kakinada-I (customs), Division Port, Kakinada – 7 …Respondents THE HON’BLE SRI JUSTICE GODA RAGHURAM AND THE HON’BLE SRI JUSTICE N. RAVI SHANKAR W.P.No.25435 of 2011 ORDER : (PER GR,J) This extract, Customs, Excise and Service Tax Appellate Tribunal (CESTAT), South Zonal Bench, Bangalore, by a common Order dated 05-04-2011 in Customs Appeals Nos.209 and 223/2006, preferred against orders in Appeal Nos.2 & 3 of 2006 (V-II) Cus dated 17-01-2006, found a conflict between the judgments in Commissioner of Customs & Excise, Visakhapatnam v. Ruchi Infrastructure Limited [2008 (224) ELT 477] (Bangalore Bench of the Tribunal) and its decision in Mangalore Refineries and Petrochemicals Limited v. CC, Mangalore [2006 (205) ELT 753] (also the Bangalore Bench of the Tribunal) and referred the conflict for resolution by a Larger Bench of CESTAT. By the order dated 18-07-2011 (impugned herein) the Larger Bench of CESTAT held at para 7.2 of its order that the decisions of the Tribunal in Ruchi Infrastructure Ltd. and Mangalore Refinery and Petrochemicals Limited were rendered in different sets of facts and there was no conflict and, at para 9 of the order returned the reference to the referral bench for decision on the merits of the case in view of absence of any conflict discerned by the Larger Bench. However, in para 8.2, the counsel for the petitioner contends that observations were made as to the factual circumstances arising in Appeal No.C/209 of 2006 which were attributed as applicable to the facts in Appeal No.C/223 of 2006 as well. The learned Counsel for the petitioner contends that as the Larger Bench of CESTAT did not hear the petitioner on the merits of the appeals since it was only concerned with the conflict referred for resolution by the referral bench’s order dated 05-04-2011, it is prejudiced by the factual observations recorded in para 8.2 of the Larger Benchs’ order dated 18-07-2011. It is also contended that the facts recorded in para 8.2, as though applicable to both the Appeal Nos.209 & 223 of 2006 were, in fact, facts pertaining to Appeal No.C/209 of 2006 and not to Appeal No.C/223 of 2006. As the merits of the appeals were not referred to the Larger Bench of the Tribunal for resolution and the only issue referred to the Larger Bench was a resolution of the apparent conflict in the decisions of Ruchi Infrastructure Ltd., the Larger Bench could not have gone into the merits of the case; and it did not in fact determine or adjudicate the merits of the appeals either. In conclusion (para 9 of the order) the Larger Bench returned the reference to the regular Bench which referred the matter by the order dated 05-04-2011. In the facts and circumstances, after hearing the learned counsel for the petitioner Sri J.V. Rao and the learned counsel for Customs and Excise, we consider it appropriate to clarify that the regular Bench of CESTAT will now proceed to determine Customs Appeals Nos.209 and 223 of 2006 on the facts on record without being in any manner influenced by any findings of facts recorded in para 8.2 of the order dated 18-07-2011 and the Larger Bench of CESTAT, in accordance with law. The writ petition is disposed of at the stage of admission and in the circumstances without costs. ______________________ JUSTICE GODA RAGHURAM ______________________ JUSTICE N. RAVI SHANKAR Date : 12-09-2011 Ndr/* THE HON’BLE SRI JUSTICE GODA RAGHURAM AND THE HON’BLE SRI JUSTICE N. RAVI SHANKAR W.P.No.25435 of 2011 (Order of the Division Bench delivered by Hon’ble Sri Justice Goda Raghuram) Date : 12-09-2011 Ndr/*