1 MSS IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO. 73 OF 2009 CROMPTON GREAVES LTD. .. PETITIONERS Vs. UNION OF INDIA & ORS. .. RESPONDENTS Mr. Jimmy Pochkhanwala i/b Aditya Chitale for petitioners Mr. Rohit Pardeshi for respondents CORAM:SMT.RANJANA DESAI & J. P. DEVADHAR, JJ. DATE: 5/3/2009 P.C. . Rule. Returnable forthwith. Respondents waive service. By consent of the parties taken up for hearing. 2. The petitioners’ case is that they have exported manufacturing machines out of the country through merchant exporters. According to the petitioners the said merchant exporters were under the primary obligation of providing the necessary documentary evidence evidencing the said exports out of the country. A show cause notice was issued 2 to the petitioners alleging that the petitioners had not submitted the proof of export documents. 3. The petitioners filed their reply to show cause notice. By order in original dated 31/3/08 issued on 25/6/08 the second respondent confirmed the demand of Rs.52,69,030/- and imposed penalty of the same amount on the petitioners. The petitioners filed an appeal along with the stay application challenging the said order. By the impugned order dated 26/12/08 the petitioners’ stay application was dismissed. The petitioners were directed to pre-deposit 50% of the confirmed amount of Rs.52,69,030/-. The petitioners have challenged this order in this petition. 4. It appears that during the pendency of this petition the appeal filed by the petitioners was dismissed on 2/2/09 for non-compliance of the provisions of Section 35F of the Central Excise Act, 1944. By way of amendment the petitioner has inserted challenge to the said order also. 5. We have heard learned counsel for the petitioners. In the order in original dated 31/3/08the Joint Commissioner has observed that 3 there is no iota of evidence produced by the assessee, except in few cases, where acceptance of Proof of Export has been submitted. However, he has also recorded the conclusion that "except in respect of AREI Nos. where proof of export is submitted, all the other clearances for exports are made without following proper procedure laid down in the Notification 42/2001-CE(NT) dated 26/6/2001, failing which the benefit of said Notification becomes null and void and the said duty which was not paid on such clearances automatically becomes recoverable". 6. Learned counsel for the petitioners states that the petitioners have exported the goods within six months from the date of their removal from the factory and that they have sufficient proof about the said export. The order in original, however, does not reflect in depth consideration of this submission of the petitioners. In the circumstances, in our opinion, interest of justice would be served, if the said order is set aside and the matter is sent for denovo consideration in accordance with law. Hence the following order: . Order in original dated 31/3/08 issued on 4 25/6/08 is set aside. Consequently orders dated 26/12/08 and 2/2/09 passed by the Commissioner of Appeals annexed as Exhibit-N and ’O’ to the petition are set aside. The matter is remanded to respondent No. 2 for denovo consideration in accordance with law. . All contentions of both sides are kept open. . Petition is disposed of. JUDGE JUDGE