TMI Blog2018 (7) TMI 1446X X X X Extracts X X X X X X X X Extracts X X X X ..... be upheld. The order passed in this appeal by the tribunal and any consequential order thereto are quashed and set aside - appeal allowed - decided in favor of assessee. - D.B. Central/Excise Appeal No. 62 / 2017 - - - Dated:- 29-11-2017 - MR. K. S. JHAVERI AND MR. VIJAY KUMAR VYAS, JJ. For The Appellant(s) : Mr. P.K. Kasliwal For The Respondent (s) : Mr. Anuroop Singhi with Mr. N.S. Bhatti Judgment 1. By way of this appeal, the appellant has assailed the judgment and order of the tribunal whereby tribunal has dismissed the appeal of the assessee. 2. This court while admitting the appeal on 4.10.2017 framed following substantial question of law:- Whether on the facts and in the circumstances of the ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r consideration in CWP No.1914/2013 (Krishan Kumar Gattani Company vs. Union of India ors.) and other connected matter decided on 4.10.2017 wherein while considering the matter, this court has held as under:- 14. The main contention of counsel for the petitioner is that notices which are issued are not clear under which clause of 65(19), they are covered and the authority has failed to consider that the proceedings against the identically situated persons by the Tribunal by another Assistant Commissioner and decision of the Bombay Tribunal in Ful Chand Tikamchand Vs. Commissioner of C.Ex. CUS., Nagpur 2016 (42) STR 1063 (Tri. Mumbai) identically situated case. No doubt it is subsequent to the adjudication of the petitioner are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... S.T.R. J36 (S.C.). 16. He also contended that clause (vii) is invoked or introduced w.e.f. 16.6.2005 thereafter in view of clause (vii), they are paying the tax. On the ground of delay ground (d) of the writ petition, he contended that notice was time barred and in view of decisions which are referred in ground (e) reads as under:- 2006 [201] E.L.T. 513 (S.C.) 2009 [241] E.L.T. 481 (S.C.) 1989 [40] E.L.T. 276 (S.C.) 1989 [43] E.L.T. 195 (S.C.) 1994 [74] E.L.T. 9 1995 [75] E.L.T. 721 2001 [42] R.L.T. 508 (Tri) 2001 [131] E.L.T. 662 2001 [135] E.L.T. 719 2001 [138] E.L.T. 381 2002 [148] E.L.T. 1124 (Tri Bang) 2005 [184] E.L.T. 61 (Tri Chennai) 2003 [154] E.L. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... least it will loose faith of the people in the judicial system. Instead, we have given chance to the counsel for the respondent to refer the matter back to the Commissioner but they have not inclined to go before the Commissioner (Appeals). They have insisted instead of relegating to prefer an appeal before the tribunal and having admitted the matter, we have proceeded the matter on merits. 24. The court suggestions to again remand the matter was not acceptable to counsel for the department for the reasons best known to them. They have opted decision on merits. Therefore, the matter on merits. The proceedings of 16.5.1990, we are of the considered opinion that programmer services will not be covered under clause (ii) and Adjudicating ..... X X X X Extracts X X X X X X X X Extracts X X X X
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