9911796707
TMI Blog2011 (10) TMI 444X X X X Extracts X X X X X X X X Extracts X X X X ..... er 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 to Section 35F of the Central Excise Act. Such writ petition filed by the petitioner was decided by this Court vide judgment dated 11th July, 2011 [2011 (274) E.L.T. 45 (All.)] and it was held that the Tribunal should have considered the judgments relied upon by the petitioner in support of his prima facie case. With reference to the Division Bench judgment of this Court in the case of I.T.C. Ltd. v. C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llowed in toto by the Commissioner (Appeals) in view of the law laid down by the Apex Court in the case of Vishnu Traders v. State of Haryana & Others reported in 1995 Supp (1) SCC 461. (b) Commissioner (Appeals) has misread the judgment of the Tribunal in the case of Mayo India Ltd. v. C.C.E., Aurangabad reported in 1999 (113) E.L.T. 1036 (T), (c) There has been complete non-consideration of the judgment of the Apex Court in the case of Pawan Biscuits Company (P) Ltd. v. Collector of Central Excise, Patna 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 loa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the finding recorded by the Commissioner (Appeals) on the issue of prima facie case is perverse or so as to the extent that no reasonable man can come to the said conclusion or not. 7. In the aforesaid background that this Court finds that the first ground raised by the assessee has specifically been taken note of by the Commissioner (Appeals). Even otherwise, it may be recorded that the order passed by the Tribunal, while considering the waiver application made in respect of previous year proceeding vide order dated 13th November, 2009, observed as follows : "Having heard the matter for a considerable time, we find it appropriate to fix the matter for final disposal. We, accordingly, direct the matter of stay application to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se 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 cert ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... held that loan licensees were only performing job work for the assessee and were not independent manufacturers as was pleaded by the petitioner. 11. Prima facie finding so recorded by the Tribunal cannot be said to be perverse. This Court finds that the Tribunal in the case of Mayo India Ltd. (supra) has specifically observed in paragraph-6 as follows : "6.................................The department has not adduced any evidence to show that the appellants were exercising control and supervision over the manufacturing activities in the premises of the manufacturers. There is no allegation contained also in the show cause notice that the appellants and the manufacturers of the product were related persons." 12. The Commission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o binding precedent applicable in the facts of the present case. The cause has to be judged on its own merit and the peculiar fact, specifically those emerging from the agreement entered into between the petitioner and the loan licensees. Agreement has been considered by the Commissioner (Appeals) in extenso and after noticing the various paragraphs of the agreement so entered into, a prima facie finding has been recorded that the loan licensees were only performing job work for the assessee and they were not manufacturers in their own right. 14. There is no illegality in the order of the Commissioner (Appeals) which may warrant any interference under Article 226 of the Constitution of India. 15. At this stage, learned counsel f ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
