TMI Blog2012 (9) TMI 1072X X X X Extracts X X X X X X X X Extracts X X X X ..... he petitioner is a Public Limited Company, based in Haridwar, Uttarakhand and is engaged in manufacture and sale of Flock Fabrics, falling under Central Excise Tariff Chapter Heading 59.07 and sub-Heading 5907.12 of the Central Excise Tariff Act, 1995. The unit of petitioner was established in the year 1989. Govt. of India, Ministry of Commerce and Industry (Department of Industrial Policy and Promotion), New Delhi issued an Office Memorandum on 07.01.2003, which was the New Industrial Policy and other concessions for the State of Uttarakhand and Himachal Pradesh in which fiscal incentives were proposed to new units and to existing units on their substantial expansion. Consequent upon the new Policy dated 07.01.2003, the petitioner, who had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the expansion programme on or after 07.01.2003 and thereupon a show cause notice was issued to the petitioner to which the petitioner responded. The matter was adjudicated upon by the Commissioner, Meerut vide order dated 26.10.2006. It is asserted that the IIT, Roorkee has given a report that the process of coating, flock dosing, flock fabric drying and flock fabric brushing operations are performed in continuous operations and if capacity of any of these operations was not increased, the installed capacity of the plant could not be increased. It is stated in the petition that some clarifications were issued by Central Board of Excise and Customs (CBEC)/respondent no.1 on the terms substantial expansion, governing all area based exemptio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uty. He submitted that no duty could be demanded from the petitioner, inasmuch as, all the nine areas of manufacturing operation were installed and commissioned after 07.01.2003. He contended that the CESTAT did not pass any speaking order under Section 35F of the Act; has failed to appreciate the prima-facie case of the petitioner on merit; did not consider that if the said demand would ultimately arise then abatement of cum-duty price under Section 4 (4) (d) would apply and there would be undue hardship to the petitioner, inasmuch as, it was incurring cash loss in the past two years and the bankers were pressing hard for regularisation of cash credit limits. Thus, the judgment of Apex Court in the case of Benara Valves Limited v. CCE, r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itioner increasing huge cash losses but also it is serviced by in adequate working capital facility. Besides it, the petitioner has to pay 100% advance for importing its raw materials i.e. adhesives, tow fabric (against letter of credit or full advance), while on the other hand it has to allow huge credit to its debtors and the collection period of debts ranges from 90 to 120 days moreover, the bankers are constantly censuring the petitioner to regularise the cash credit account and other terms loans. It has been prayed to issue a writ of mandamus directing the CESTAT to waive the condition of pre-deposit of duty and hear the appeal of the petitioner on the merits of the appeal. 5. Learned Senior Standing Counsel for the respondent, fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arge number of judicial pronouncements with respect to other enactments, including the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 and by the words/ expression `every order', it is signified some order which affects right/rights or liability/liabilities of a party . He placed reliance on the judgment of Division Bench of Allahabad High Court in Smt. Rajeshwari Misra and anr. v. Markandeshwar Mahadeo Trust, reported in AIR 1965 All 211 and full bench of Madhya Pradesh High Court in Kowa Spinning Ltd. and ors. v. Debt recovery Tribunal and ors, reported in AIR 2004 MP-1. 8. Learned counsel for the respondents further contended that vide the impugned order the CESTAT while exercising its discretionary po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hould be read together, before arriving to a just decision of the matter because undue hardship and balance of conveyance is to be looked into matter sparingly. 10. Learned counsel for the respondents contended that insofar as reliance placed on the Benara Valves case (Supra), in that case law, the issue of maintainability of writ petition vis-`-vis Section 35-G of Act was not, at all, raised or involved and nor dwelled upon or referred to, hence this judgment does not lay down any law to the effect that writ petition is maintainable against an order passed under Section 35-G of the Act. 11. I have considered the arguments of learned counsel for the parties. Section 35-G of the Act provides appeal to High Court from every order pa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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