bgp IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.1618 OF 1999 BPM Industries Ltd. ..Petitioner Vs. Union of India & Ors. ..Respondents Mr.S.N.Kantawalla with Brijesh Pathak i/b. Kantawalla & Co. for petitioner. Mr.P.S.Jately with Mr.J.B.Mishra for respondents. CORAM :- V.C.DAGA & K.K.TATED,JJ. DATE : 11TH JANUARY,2010 P.C. 1. Heard learned Counsel for the parties. Perused petition. 2. This petition is directed against the order dated 21st April, 1999 passed by the Customs, Excise and Gold (Control) Appellate Tribunal, West Regional Bench at Mumbai rejecting appeals filed by the petitioner and allowing appeal filed by the respondents. The Tribunal has held that the petitioner was not entitled to the benefit of Notification No.204/1992 dated 9th May, 1992 even though the MODVAT credit obtained was reversed by the petitioner and got the advance licenses on completion of their export obligation of the Merchant Exporter Selective Chemicals Ltd. which made it duly transferable under the Import Policy. 3. The contention of the petitioner is that they are legally and validly entitled to claim exemption under Section Exemption Notification No.204/1992 and that the second respondent erred in distinguishing the ratio laid down by the High Court in the case of Chandrapur Magnate Wires P. Ltd. Vs. Collector 1996(81) ELT 3 (SC). 4. The learned Counsel for the petitioner, in support of his submission to claim exemption, relied on the judgments of the Apex Court in the case of Bharti Telecom Ltd. Vs. Commissioner of Customs 2001 (134) E.L.T. 327 (S.C.) and Commissioner of Customs (Imports), Bombay Vs. HICO Enterprises 2008 (228) .EL.T. 161 (S.C.) and the judgments of this Court in the case of K.Uttamlal (Exports) Pvt. Ltd. Vs. Union of India 1990 (46) E.L.T. 527 (Bom.), A.V.Industries Vs. Union of India 2005(187) E.L.T. (Bom.) and Pradip Polyfils Pvt. Ltd. Vs. Union of India 2004(173) E.L.T. 3 (Bom.) and prayed that the impugned order be quashed and set aside. 5. The above submission was resisted by the learned Counsel appearing on behalf of the Revenue. He tried to support the impugned order relying on the judgment of the Orissa High Court in the case of Raj Exports Vs. National Aluminium Co. Ltd. 1996 (87) E.L.T. 349 (Ori.), subsequently affirmed by the Apex court with modifications. The very same judgment was relied upon by the Tribunal in support of its view. 6. Having heard both parties, it is not in dispute that the judgment of the Orissa High Court in the case of Raj Export (supra) was taken to Hon’ble Supreme Court in Special Leave to appeal by Raj Export. The judgment of the Orissa High Court was modified by the Apex Court on 22nd January, 1997 while disposing of SLP. When the impugned order dated 21st April, 1999 was passed by the Tribunal, the modified order of the Apex Court was very much available. However, none of the parties brought this modified order to the notice of the Tribunal. Consequently, the Tribunal did not have the advantage of the modified order while passing impugned order. 7. The core submission is that the judgment of the Orissa High Court in Raj Exports (supra) to some extent stands modified by virtue of the order of the Apex Court dated 21st January, 1997 and that since the Tribunal did not have an advantage of looking into the effect of the said modification order, the impugned order be set aside and the matter be remanded back to the Tribunal for consideration afresh in the light of the law holding the filed as on date keeping all rival contentions on merits open. 8. The learned Counsel for the Revenue has no objection to follow this route. 9. In the above view of the matter, looking to the consensus between the parties, the impugned order is set aside and the matter is remanded back to the Tribunal for consideration afresh. The Tribunal is expected to dispose of the same by a reasoned order following the principles of natural justice as expeditiously as possible preferably within a period of six months from the date of receipt of this order. All rival contentions on merits are kept open. In the result, petition stands disposed of in terms of this order with order as to costs. (K.K.TATED,J.) (V.C.DAGA,J.)