JUDGMENT V.M. Sahai, Actg. C.J. 1. Sur-Rejoinder filed by respondent Nos. 3 and 4 is taken on record. 2. Heard learned counsel appearing on behalf of the respective parties. 3. This writ petition has been filed by the petitioners challenging the impugned order dated 25.3.2015 passed by the Commissioner of Customs (Appeals). 4. Brief facts of the case are that petitioner is an importer of aluminum waste and scrap. That from said waste and scrap, petitioner manufactures aluminum plates and sheets as well as he gets manufactured circles from the plates, sheets and utensils in his own factory. He claims exemption of customs duty of the raw material imported by him under Notification No.12/2012 - Central Excise : dated 17.3.2012. 4.1 The executing authority by judgment dated 9.3.2011, which is at Page-124 of the paper book, held that petitioner was manufacturing the goods other than plates and sheets and was also manufacturing circles and tubes and therefore, he is liable to pay the customs duty and is not entitled to benefit of Notification No. 12/2012 - Central Excise. 4.2 The petitioner has challenged this order in Appeal. The Commissioner of Customs (Appeals) by its judgment dated 2.9.2011 held as under: "6.3 ...They besides other proofs as mentioned above, have submitted details of manufacturing process along with flow chart, details of plants & machineries installed in the unit, Chartered Engineer's certificate dated 17.10.2010 and photographs showing the manufacturing process of aluminum plates/sheet and utensils, to prove that impugn goods were first converted into unwrought aluminum plate and sheet and subsequently the same are used fort manufacture of aluminum circle to be used for manufacture of utensils...." 4.3 Therefore, after recording the finding that petitioner is manufacturing aluminum sheets and from circles, he is manufacturing aluminum utensils, he granted exemptions to the petitioner under Notification No. 3/2005 which is now renumbered as Notification No. 12/2012 - Central Excise : dated 17.3.2012. This order of Commissioner of Customs (Appeals) dated 2.9.2011 attained finality between the parties and they did not challenge this order by way of any further appeal. 4.4 Another notice was issued for subsequent goods after bills of entry were filed by the petitioners, for which exemption was not granted by the Assessing Authority. However, the Commissioners of Customs (Appeals) allowed the appeals of the petitioner. 4.4 Another notice was issued for subsequent goods after bills of entry were filed by the petitioners, for which exemption was not granted by the Assessing Authority. However, the Commissioners of Customs (Appeals) allowed the appeals of the petitioner. The judgment of the Commissioner of Customs (Appeals) are filed at Annexure-E, Annexure-G and Annexure-H. Subsequently, two Assessing Officers accepted the contentions of the petitioner. The assessment order has been filed at Annexure-A and Annexure-F. Therefore, the dispute between the parties that the scrap material which was imported by the petitioner, out of which petitioner was manufacturing aluminum sheets, out of which plates and circles were prepared for the purpose of manufacturing utensils, came to a rest. 4.5 The Assessing Authority, viz., Deputy Commissioner, Customs, ICD-Khodiyar, Ahmedabad by his order dated 12.11.2014 granted exemption to the petitioner under Notification No. 12/2012. However, in the body of the order, he has recorded a finding that there are additional facts which have come to the notice but, in order to maintain judicial discipline, he has granted exemption to the petitioner. 4.6 The Department has filed an appeal challenging the order of Deputy Commissioner, dated 12.11.2014 before the Commissioner of Customs (Appeals), Ahmedabad. The Commissioner of Customs (Appeals), Ahmedabad allowed the appeal of the Department and held that petitioner is not entitled for benefit of exemption provided by a Notification No.12/2012 : on the ground that new facts have been brought on record by the Revenue and the assessee is manufacturing aluminum circles which are cleared under the compound levy scheme. 5. We are of the opinion that so far as the circle is concerned, this objection was raised by the Revenue in the very first assessment order passed by the Assessing Authority dated 9.3.2011 which was not accepted by the Commissioner of Customs (Appeals), Ahmedabad by judgment dated 2.9.2011 and the Commissioner of Customs (Appeals) was pleased to allow the appeal of the petitioners. Therefore, we are of the considered opinion that there was no new facts which came into light on the basis of which the Commissioner of Customs (Appeals), Ahmedabad jumped to the conclusion that new facts are emerged and the petitioner is manufacturing circles. Therefore, we are of the considered opinion that there was no new facts which came into light on the basis of which the Commissioner of Customs (Appeals), Ahmedabad jumped to the conclusion that new facts are emerged and the petitioner is manufacturing circles. When there were already six orders - as pointed out by learned counsel for the petitioner -, in favour of petitioner passed by the Commissioner of Customs (Appeals), Ahmedabad as well as by the Assessing Officer, in such situation the Commissioner of Customs (Appeals), Ahmedabad was not justified in holding that new fact has come into existence over-looking the finding of fact recorded by the Commissioner of Customs (Appeals), Ahmedabad in its earlier judgment dated 2.9.2011. Therefore, the order passed by the Commissioner of Customs (Appeals), Ahmedabad cannot be maintained. 6. Mr. R.J. Oza, learned Senior Counsel has vehemently urged that petitioner has an adequate statutory remedy of filing an appeal. It is true that petitioner has statutory remedy of filing an appeal challenging the order passed by Commissioner of Customs (Appeals), Ahmedabad under Section 129 of the Customs Act. The facts of the case demonstrate a clear abuse of power by Commissioner of Customs (Appeals), Ahmedabad and when there were repeated orders granting exemptions to the petitioner and even the objection with regard to circle having been considered earlier, it was not open to the Commissioner of Customs (Appeals), Ahmedabad to reverse the orders of the Assessing Authority only on the basis that the petitioner was manufacturing circles also. The order of the Commissioner of Customs (Appeals), Ahmedabad was contrary to the judicial propriety, discipline and amounted to abuse of process of the Court and it could be said to be an order passed without jurisdiction. Therefore, alternative remedy is not come in the way of petitioner and the writ petition would be maintainable. 7. Mr. R.J. Oza, learned Senior Counsel has vehemently urged that when new facts have emerged, viz., the petitioner has manufactured circles and cleared the circles in the open market which was not there in the earlier assessing orders. 7.1 If the Commissioner of Customs (Appeals), Ahmedabad has been satisfied that new facts have emerged then, he could not himself decide the matter. At the most, he could have remanded the matter for a fresh consideration. 7.1 If the Commissioner of Customs (Appeals), Ahmedabad has been satisfied that new facts have emerged then, he could not himself decide the matter. At the most, he could have remanded the matter for a fresh consideration. It was not open to the Commissioner of Customs (Appeals), Ahmedabad to decide the matter himself without examining anything further and without taking any material on record merely on the contention made by the other side. 8. For the reasons given above, this writ petition succeeds and allowed. The order passed by the Commissioner of Customs (Appeals), Ahmedabad, dated 25.3.2015 (Annexure-L) is hereby quashed. The party shall bear their own costs.