TMI Blog2012 (6) TMI 738X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Department’s appeal when the Final order was passed by this Bench on 3-12-2009. Be that as it may, the crucial finding recorded by the Bench in Final Order dated 3-12-2009, on the basis of which the assessee got relief, is erroneous and the injustice arising out of such finding has got to be remedied. There is a more or less similar situation in relation to Miscellaneous Order dated 19-7-2010 also - Decided against Revenue. - E/901/2008 - Misc. Order No. 492/2012 - Dated:- 12-6-2012 - Shri P.G. Chacko and M. Veeraiyan, JJ. Shri Ganesh Haavanur, Addl. Commissioner (AR), for the Appellant. Ms. L. Maithili, Advocate, for the Respondent. ORDER This miscellaneous application filed by the Department, appellant in Appeal No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om para 8.1 of the Final Order is given below : 8.1 We find that on this short point itself i.e. when there is a clear cut findings that ex-factory prices are genuine prices and there being no appeal filed by the Revenue against such a findings, the Adjudicating Authority exercise of confirming the demand, as has been raised in the show cause notice is clearly incorrect and liable to be set aside. Unfortunately, neither side brought a crucial fact to the notice of the Bench, which fact was that the Department s Appeal No. E/901/2008 filed against the same order of the Commissioner was pending. It was incumbent on both sides, particularly on the JDR representing the Department, to mention the pendency of the Department s appeal, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Final Order No. 1490/2009, dated 16-12-2009 has properly stated the point, as to there being no appeal by the Revenue against the same order-in-original involving the same parties. Despite the clear indication given by this Bench in both the Miscellaneous Orders passed in the Department s ROM application, apparently, no steps were taken by the Department for change of the respondent s name in appeal No. E/901/2008. It would appear from the Miscellaneous Orders dated 7-6-2010 and 19-7-2010 that the pendency of the Department s miscellaneous application for change of name of the respondent in their appeal was correctly noted by the Bench in its order dated 7-6-2010 but, in its order dated 19-7-2010, such pendency was overlooked by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l, though filed later, was listed before the Bench for final hearing while the Department s appeal, filed earlier, was still pending. Neither side mentioned anything about the pending appeal of the Department when the Bench passed Final Order dated 3-12-2009 in the assessee s appeal. We are constrained to believe that both sides were aware of the factum of pendency of the Department s appeal when the Final order was passed by this Bench on 3-12-2009. Be that as it may, the crucial finding recorded by the Bench in Final Order dated 3-12-2009, on the basis of which the assessee got relief, is erroneous and the injustice arising out of such finding has got to be remedied. There is a more or less similar situation in relation to Miscellaneous O ..... X X X X Extracts X X X X X X X X Extracts X X X X
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