1 IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL ORIGINAL ORIGINAL CIVIL JURISDICTION CIVIL JURISDICTION CIVIL JURISDICTION CENTRAL CENTRAL CENTRAL EXCISE EXCISE EXCISE APPEAL NO. 46 OF 2007 APPEAL NO. 46 OF 2007 APPEAL NO. 46 OF 2007 The The The Commissioner Commissioner Commissioner of Central of Central of Central Excise, Excise, Excise, Mumbai-V Mumbai-V Mumbai-V ...... Appellant Appellant Appellant vs vs vs M/s M/s M/s Mahindra Mahindra Mahindra & Mahindra Ltd (Tr.Dn).. Respondents & Mahindra Ltd (Tr.Dn).. Respondents & Mahindra Ltd (Tr.Dn).. Respondents Mr.K.R.Choudhari Mr.K.R.Choudhari Mr.K.R.Choudhari with with with Ms S.V.Bharucha and Ms S.V.Bharucha and Ms S.V.Bharucha and Mr.H.P.Chaturvedi Mr.H.P.Chaturvedi Mr.H.P.Chaturvedi for for for Appellant Appellant Appellant Mr.Manoj Mr.Manoj Mr.Manoj Shah Shah Shah for Respondents for Respondents for Respondents CORAM CORAM CORAM : : : F.I.REBELLO AND F.I.REBELLO AND F.I.REBELLO AND R.S.MOHITE, R.S.MOHITE, R.S.MOHITE, JJ JJ JJ DATED DATED DATED : : : 10th January, 2008 10th January, 2008 10th January, 2008 P.C. P.C. P.C. 1.1.1. We find from the order of the tribunal We find from the order of the tribunal We find from the order of the tribunal following following following notings: notings: notings: " On On On the contrary, reading of the order show the contrary, reading of the order show the contrary, reading of the order show that that that the short levy was detected by the job the short levy was detected by the job the short levy was detected by the job workers workers workers on on on is own and duty was paid. " is own and duty was paid. " is own and duty was paid. " 2.2.2. The revenue among the questions as framed has The revenue among the questions as framed has The revenue among the questions as framed has also also also framed questions on this point that the said framed questions on this point that the said framed questions on this point that the said finding finding finding is perverse. We asked learned counsel for is perverse. We asked learned counsel for is perverse. We asked learned counsel for the the the respondents to point out to us any finding by respondents to point out to us any finding by respondents to point out to us any finding by the the the authorities below on this count. Nothing has authorities below on this count. Nothing has authorities below on this count. Nothing has been been been brought to our attention to indicate that the brought to our attention to indicate that the brought to our attention to indicate that the finding finding finding of the tribunal can be justified. In our of the tribunal can be justified. In our of the tribunal can be justified. In our opinion, opinion, opinion, this would disclose non application of this would disclose non application of this would disclose non application of mind. mind. mind. It is true that predicates of Rule 7 (1) (b) It is true that predicates of Rule 7 (1) (b) It is true that predicates of Rule 7 (1) (b) of of of Cenvat Credit Rules, 2002 has also to be Cenvat Credit Rules, 2002 has also to be Cenvat Credit Rules, 2002 has also to be satisfied. satisfied. satisfied. Considering the finding on the first Considering the finding on the first Considering the finding on the first 2 question, question, question, in our opinion, ends of justice would in our opinion, ends of justice would in our opinion, ends of justice would require require require that the impugned order is set aside and that the impugned order is set aside and that the impugned order is set aside and matter matter matter is remanded back to the tribunal for denova is remanded back to the tribunal for denova is remanded back to the tribunal for denova consideration consideration consideration on all points. on all points. on all points. 3.3.3. Appeal is accordingly allowed. The impugned Appeal is accordingly allowed. The impugned Appeal is accordingly allowed. The impugned order order order is set aside and the matter is remanded back is set aside and the matter is remanded back is set aside and the matter is remanded back toto to the tribunal for denova consideration. However, the tribunal for denova consideration. However, the tribunal for denova consideration. However, there there there shall be no order as to costs. shall be no order as to costs. shall be no order as to costs. (F.I.Rebello, (F.I.Rebello, (F.I.Rebello, J) J) J) (R.S.Mohite, (R.S.Mohite, (R.S.Mohite, J) J) J) 3