1998 (4) TMI 180

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..... p;This is a stay application filed w.r.t. the order-in-appeal passed by the ld. Commissioner of Appeals, Allahabad. 2. Ld. Counsel stated that this matter had come up earlier on Board and an ad interim stay had been granted on 2-3-1998 as the department wanted to call for comments in view of the applicant's submission that the Commissioner (Appeals) had travelled beyond the show cause notice .....

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..... rfore he dropped the demand. 7. The department however, went in appeal, inter alia, on the ground that cotton fabric was exempted by Notification 25/95, 40/95 and 41/95 all dated 16-3-1995 and therefore it was not an eligible input. Hence, the order of the A.C. may be set aside. 8. The Commissioner accepted the department's plea confirmed the demand under Rule 57C and also imposed a pe .....

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..... nputs had already been cleared from the manufacturers unit before this date. Furthermore the Commissioner (A) was not the proper officer for issuing a demand. Under Rule 57-I it is only the proper officer as defined under Rule 2 who can issue the demand. If the Commissioner found the order of the A.C. not proper, he could have set aside the same and remanded the matter with suitable directions but .....

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..... t and the Tribunal in the case of Extrusion Processes Ltd. - 1994 (69) E.L.T. 144 to show that the appeal by the department cannot be ordered to be filed beyond show cause notice. The judgment of the Gujarat High Court in the case of Deepak Vegetable Oil Ind. 1991 (52) E.L.T. 222 to show that manufacturers using a specified inputs acquired a right to utilise the same and such right does not ceases .....

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..... Collector for imposition of penalty. 14. I have considered the above submissions. I observe that prima facie the appellants appear to have a stronger case. I, therefore, confirm the ad interim stay already granted and direct that the waiver of pre-deposit shall remain in force and realisation of duty and penalty in question shall remain stayed during the pendency of the appeal.
Case laws .....

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