TMI Blog2011 (10) TMI 444X X X X Extracts X X X X X X X X Extracts X X X X ..... ed as, Assessee may deposit Rs. 20 lacs in cash within one month from today and for the remaining amount in terms of the order of the Commissioner (Appeals), he may furnish security other than cash or bank guarantee to the satisfaction of the Commissioner (Appeals) within the same period. - - - - - Dated:- 11-10-2011 - Arun Tandon, J. REPRESENTED BY : S/Shri M.P. Devnath and Nishant Mishra, Advocates, for the Petitioner. S/Shri S.P. Kesarwani, SSC and Shambhu Chopra, Counsel, for the Respondent. [Order]. Heard Shri M.P. Devnath, Advocate assisted by Shri Nishant Mishra, Advocate for the petitioner and Shri Shambhu Chopra, learned counsel for the respondents. 2. Petitioner had approached this Court earlier by means of Civil Misc. Writ Petition (Tax) No. 924 of 2011 in the matter of consideration of his application made under Section 35F of the Central Excise Act with the allegation that various judgments relied upon by the petitioner for establishing his strong prima facie case had not been considered by the Commissioner (Appeals), Customs, Central Excise and Service Tax, Allahabad, while deciding his application for waiver titled as Stay Application referable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... na reported in 2000 (120) E.L.T. 24 (S.C.). 5. Learned counsel for the petitioner made an attempt to take the Court to the various agreements executed between the petitioner and the loan licensees for establishing that the loan licensees were manufacturers in their own right and they were not performing the job work on behalf of the assessee. Therefore, their turnover was not liable to be clubbed with that of the assessee. 6. At the very outset this Court may record that the present writ petition arises out of proceedings under Section 35F of the Central Excise Act, where only prima facie case of the assessee has to be examined in the matter of consideration of the waiver application. Exercise of jurisdiction in the consideration of prima facie case by the Commissioner is therefore, subject matter to be examined by this Court in the present writ proceedings. It may be recorded that unless the assessee is successful for establishing that the view taken by the Commissioner (Appeals) while considering the prima facie case is perverse and no reasonable man can come to the conclusion, there shall hardly be any scope for this Court to interfere under Article 226 of the Constitution o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duct from Ahmedabad to Allahabad copies of which are placed in Volume I II of the documents produced before the Tribunal which are stated to be the part of the documents relied upon and placed before the adjudicating authority and ignored by the adjudicating authority. In the circumstances, we find it appropriate to dispose of the matter finally rather than disposing of merely the application for stay. 2. In case the respondent wants to place on record any document disclosing the consideration of all these documents by the adjudicating authority while deciding the matter, the same shall be placed on record on or before 16th December, 2009 with advance copy thereof to the appellants. 3. Meanwhile, the respondent shall not take any coercive step against the appellants in relation to the order in question. Stand over to 21st January, 2010. 8. It will be seen that the Tribunal has not recorded any finding on the prima facie merits of the case of the assessee, so far as the issue in hand is concerned. The Tribunal has only considered that certain documents, which were on record, as canvassed by the assessee had been ignored by the Commissioner (Appeals) while passing the impugn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court may record that petitioner had relied upon five judgments before the Commissioner (Appeals). All five judgments have been considered and distinguished. Petitioner did not refer to the judgment in the case of Pawan Biscuit Company (supra) before the Tribunal. Even otherwise, the judgment in the case of Pawan Biscuit Company (supra) does not lay down any binding legal precedent, which the Commissioner (Appeals) can be said to have ignored while considering the impact of the order of the Tribunal passed in respect of the assessee for the previous years, specifically in the circumstance when the issue which was considered in the interim order of the Tribunal qua previous year proceedings was entirely on different ground vis-a-vis the one, which had been canvassed before the Commissioner (Appeals) at the time of consideration of the application under Section 35F of the Central Excise Act giving rise to this petition. 13. It may also be recorded that the Hon ble Supreme Court of India in the case of Vishnu Traders (supra) in paragraph-3 has held that in the matter of interlocutory orders, principle of binding precedent cannot be said to apply. As a matter of fact there is no bind ..... X X X X Extracts X X X X X X X X Extracts X X X X
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