The main legal point established in the judgment is the importance of adhering to principles of natural justice and fair play in assessment processes, and the consequences of a failure to do so.

F.I. REBELLO, J.

Rule. Heard forthwith.

2. The petitioner is a manufacturer of Centrifugal Pumps. The petitioners also manufacture goods which are inputs for the pumps and which are used in the manufacture of the pumps. There is no dispute that the pumps as manufactured are exempt from Central Excise Duty. The Respondent Authorities by order dated 13th September, 2000 in respect of the castings manufactured by the petitioners held that the castings are marketable goods. Further held that they are classifiable under C.H.H. 73.25 and 74.19 (depending on the metal used) and, therefore, the classification was correct. Various other questions were considered and in conclusion proposed quantify the duty and consequently directed the assessee to furnish certain data. Another order was passed to the similar effect on 14th September, 2000.

3. Pursuant to the said orders the petitioner furnished the necessary information. By order dated 11th November, 2004 the respondent No.4 demanded duty on the CI castings for the amount specified therein. Subsequent thereto the petitioner preferred an Appeal before the Commissioner of Appeal. That appeal was filed beyond the prescribed period of limitation. The learned Appellate Authority found that they had no jurisdiction to condone the delay and consequently dismissed the Appeal by the order dated 28th April, 2006. Aggrieved by that order an Appeal was preferred to the CESTAT. The CESTAT on hearing the Appeal held that the Commissioner (Appeals) was right in not condoning the delay as that was beyond his jurisdiction. In view of that the application made for waiver of pre-deposit was rejected and consequently the Appeal also came to be dismissed.

4. By the present petition the petitioners seek to challenge the order passed assessing the duty and consequential orders seeking to recover the said duty.

5. On behalf of the petitioners their learned Counsel submits that it is no doubt true that the Appeals were dismissed being beyond the period of limitation. Nevertheless there is a clear failure of natural justice and fair play in as much as the respondent No.4 before having quantified the duty ought to have given them a hearing. It is, therefore, submitted that considering these facts it is always open to this Court to exercise its extra ordinary jurisdiction. For that purpose reliance is placed in the judgment of the Supreme Court in State of U.P. vs. Mohd. Nooh, AIR 1958 S.C. 86.

6. On behalf of the Respondents a reply has been filed by respondent No.4 setting out their case. One of the contentions raised is that considering that the Appeal has been dismissed as it was filed beyond the prescribed period this Court should not exercise its extra ordinary jurisdiction. In paragraph 7 it is set out that during the relevant period the pumps were only exempted from payment of central excise duty by virtue of notification dated 28th February, 1993 or were chargeable to Nil rate of duty by the Tariff Entry itself. The petitioner it is contended has not paid any central excise duty on the castings of cast iron and gun metal and spare parts manufactured by the petitioners and the said goods were consumed captively in the manufacture of the aforesaid pumps by the petitioners. Various steps thereafter taken for recovery of duty are set out. The respondent No.4 had rejected the contention of the petitioners that the casting is not marketable product. In para.16 of the affidavit it is set out that "..it is true that the Parts of Pumps were always exempt during the impugned period as they fall in Chapter Heading 84.13 of the first schedule to the Central Excise Traffic Act, 1985. However, although, according to the petitioners casting is a Part of Pumps manufactured by the petitioners, these castings are classified under separate Chapter Heading No.73.25 and 74.19 of the first schedule to the Central Excise Tariff Act, 19