1 WP.9378.2010.sxw mnm IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 9378 OF 2010 Arvind Cotspin ...Petitioner Vs. Union of India & Ors, ...Respondents Mr. V. Shridharan with Mr. Prakash Shah with Ms. Laxmi Menon i/b. P.D.S. Legal A.P.P Mr. A.J. Rana, Sr. Counsel with Mrs. P. Bhatia with Mr. J.S. Deo for Respondents 1 to 3 Mr. Pradeep Jetly with Ms. Suchitra Kamble for Respondent No.4 CORAM: SHRI. J.P. DEVADHAR & SMT. ROSHAN DALVI, JJ. DATED: 10TH MARCH, 2011 P.C. 1. Heard. Rule returnable forthwith. 2. By consent the Petition is taken up for final hearing. 3. The Petitioner has challenged the order of the Appellate Committee dated 8th September 2010 whereby the appeal filed by the Petitioner against the order in original dated 8th June 2009 has been dismissed. 2 WP.9378.2010.sxw 4. The Petitioner is a 100% Export Oriented Unit (EOU). The Petitioner on 6th October 1999 had made an application to the Development Commissioner seeking permission for clearance of the cotton yarn manufactured by them in the Domestic Tariff Area (DTA). The Development Commissioner by his order dated 26th November 1999 granted permission to clear cotton yarn for DTA sale up to the value of Rs.12.64 Crores. Accordingly, the Petitioner cleared the cotton yarn manufactured by them for DTA sale on payment of excise duty at 50% as per the notification No.8/1997. 5. Thereafter on the basis of the letter dated 4th April 2000 received from the Ministry, the Development Commissioner issued a show cause notice on 1st March 2004 seeking to recover excise duty on goods cleared in DTA sale pursuant to the permission granted on 26th November 1999, mainly on the ground that the permission for DTA sale was erroneously granted by taking into account physical exports as also deemed exports instead of restricting it to physical exports only. 6. By an adjudication order dated 8th June 2009 the Development Commissioner confirmed the demand and further imposed penalty on the Petitioner. Appeal filed by the Petitioner was dismissed by the Appellate Committee by the impugned order dated 8th September 2010. Challenging the aforesaid order the present Petition is filed. 3 WP.9378.2010.sxw 7. In a similar Petition being Writ Petition No.1718/2003 (Hanil Era Textiles Ltd. & Anr. Vs. The Union of India & Ors.) this Court by its judgment dated 23rd February 2011 held that the Development Commissioner once grants permission to clear the goods for DTA sale and the goods are accordingly sold in the DTA, the Development Commissioner cannot review his own order, because in the absence of power to review is specifically granted, the Development Commissioner cannot review his own order. In these circumstances in our opinion the issues raised in this Writ Petition are squarely covered by the aforesaid judgment of this Court as in the present case also the Development Commissioner has sought to rectify/review his own order, that too after the original order was fully implemented. Moreover, it is not the case of the revenue, that the original order was passed on account of fraud or misrepresentation on the part of the Petitioner. 8. In these circumstances the impugned order in original dated 8th June 2009 as also the order of the Appellate Committee dated 8th September 2010 are quashed and set aside. 9. Rule is made absolute in the above terms with no order as to costs. (Smt. Roshan Dalvi, J.) (Shri. J.P. Devadhar, J.)