TMI Blog2015 (4) TMI 282X X X X Extracts X X X X X X X X Extracts X X X X ..... ntral Excise Act, 1944 is in the course of Judicial proceeding. That cannot be brushed aside. Therefore, we are prima facie of the opinion that Revenue has a prima facie case for directing predeposit due to shifting of the unit - Decided against assessee. - E/S/65/2011 in E/105/2011 - Misc. Order No. 40470 / 2015 - Dated:- 12-3-2015 - Shri D. N. Panda And Shri R. Periasami,JJ. For the Appellant : Shri Arun Karthik Mohan, Advocate For the Respondent : Shri M. Rammohan Rao, DC (AR) ORDER Per D.N. Panda This matter has been successively heard soon after the matter came from Hon ble High Court of Madras by order dated 28.1.2015. 2. On 31.12.2014, there was a prayer for adjournment for want of vakalat. Similarly, when the matter came on 23.2.2015 again adjournment was taken to seek instruction of client. That was posted to 24.2.2015. Adjournment was again taken to seek no objection of previous counsel. On 9.3.2015 when the matter came again adjournment was sought. Today, matter came for hearing. 3. Learned counsel argues that the spare part division of M/s. Tatra Vectra Motors Limited was transferred to the present appellant which is Vectra Advanced Eng ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 16.11.2009 remanding that for fresh hearing on merit extending reasonable opportunity of hearing to it. 8.1 The appellants acquired the spare part division of Tatra Vectra Motors Limited in terms of agreement dated 5.8.2008 as averred by it. Learned authority below has recorded that the spare part division acquired was adjacent to the factory premises of the appellant and that called for registration. But appellant did not seek registration of this acquired unit as has been recorded by learned adjudicating authority in para 2(b). of the adjudication order at page 3 (running page number 169 of appeal folder). 8.2 There is nothing on the record as to whether this transfer was recognized by Excise Authority seeking registration by appellant for this Spare Part Division before the excise authority. Learned Adjudicating Authority examined what was the activity carried out by the appellant and granting fair opportunity of hearing to it in the course of re-adjudication proceeding he has recorded that on 29.10.2010 one Shri Aqeel Sheerazi, Advocate and Shri Malay Kumar Shukla, Vice President (Legal) of the appellant and Shri P. Ganesan, Manager (Accounts) appeared. They simply reit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fically and if so, for what reason. Cross-examination is not mechanically allowed under law. The strictness of the evidence is essence of criminal jurisprudence but preponderance of probability is guiding factor in fiscal proceedings. 8.6 The authority has not at all acted under bias or without any unfairness. His application of mind as to understanding of valuation of excisable goods under section 4A is patent from para 12 of his order. He examined the applicability of section 4A with reference to section 2(f)(iii) of Central Excise Act, 1944 in terms of para 16 17 of his order. He found that Shri Ganesan has categorically brought out in his evidence that the goods are packed and labeled as Vectra before clearance. The goods were subject to the provisions of Weights and Measures Act and liable to be dutiable under section 4A of Central Excise Act, 1944. 9. We have given full length of hearing of the matter to both sides. Prima facie, we are not satisfied as to the reason why the goods shall not be brought under the purview of section 2(f)(iii) of Central Excise Act, 1944. Appellant failed to show the percentage of sale without labeling and repacking and otherwise. Therefor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h may be prejudiced if no predeposit is directed since from the date of show cause notice, seven year are going to expire and Revenue s interest has suffered. We are also conscious of the anxiety of the apex court in para 7 of the judgment in Assistant Collector Vs. Dunlop (India) Ltd. 1985 (19) ELT 22 (SC) which reads as under:- 7. We have come across cases where the collection of? public revenue has been seriously jeopardised and budgets of Governments, and Local Authorities affirmatively prejudiced to the point of precariousness consequent upon interim orders made by courts. In fact, instances have come to our knowledge where Governments have been forced to explore further sources for raising revenue, sources which they would rather well leave alone in the public interest, because of the stays granted by Courts. We have come across cases where an entire Service is left in a stay of flutter and unrest because of interim orders passed by courts, leaving the work they are supposed to do in a state of suspended animation. We have come across cases where buses and lorries are being run under orders of Court though they were either denied permits or their permits had been cancelled ..... X X X X Extracts X X X X X X X X Extracts X X X X
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