PREMIER CREDITS LIMITED Vs. COLLECTOR OF CENTRAL EXCISE
CUSTOMS EXCISE AND GOLD(CONTROL) APPELLATE TRIBUNAL
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HARISH CHANDER,VICE -PRESIDENT -
(1.) M /s. Premier Credits Limited has filed an appeal being aggrieved from the order passed by the Collector of Central Excise, Indore. The said appeal was received in the Registry on 11.6.1991 and simultaneously a stay application duly supported by an affidavit was also filed. The stay application filed by the applicants was disposed of by the order No. 144/91 -C dated 5.8.91 and the Tribunal had ordered the payment of both the duly and penalty amount and had dispensed with the pre -deposit of the penalty involved. Being not satisfied with the order passed by the Tribunal the applicants had challenged the same before the Hon'ble Delhi High Court by way of a Writ Petition No. CW -3131/91 dated 8.10.91. The order passed by the Hon'ble Delhi High Court appears at page 37 -38 of the paper book is reproduced below:
The case of the petitioner is that it is preparing thinner by manual process without using any power. In order to consider the application for slay, Customs, Excise and Gold (Control) Appellate Tribunal (hereinafter referred to 'the Tribunal') wanted some other material and documentary evidence to show that for preparing thinner manual process could be used.
The Tribunal rejected the application for slay of the petitioner as the petitioner could not produce the material but now he has come to this Court against that order and has placed some of that material before us.
We direct the petitioner to file a fresh application before the Tribunal for stay and with that application he may attach the material which he has now got to satisfy the Tribunal that the thinner can be manufactured by manual process also i.e. without the use of power as well. We have no doubt that the Tribunal will consider petitioners' application without being influenced by the earlier order.
In case the petitioner files a fresh application for stay of pre -deposit within four weeks from today, his appeal would not be dismissed for non -payment until the decision of that application. With this order and direction the writ stands disposed of.
(2.) A simple perusal of the same shows that the Hon'ble High Court had set aside the order passed by the Tribunal and had ordered the applicant to file a fresh application within 4 weeks from 8.10.1991 and accordingly a fresh application has been filed which was received in the Registry on 6.11.1991 which is within 4 weeks within the stipulated lime. Shri Arun Bhardwaj who has appeared on behalf of the applicant pleaded that prima facie the applicants had got a good case on merits. He pleaded that the applicants manufacture many items, one of the items manufactured is thinner and the applicants manufacture thinner without the and of power and as such the applicant had claimed the benefit of notification 230/86 dated 3.4.86.
(3.) SHRI Arun Bhardwaj, learned advocate pleaded that when the earlier order was passed by the Bench, the technical know -how is the process of manufacture as given by Small Industries Service Institute, New Delhi was not filed and the same could not be taken into consideration by the Bench while disposing of the earlier stay application. Now he referred to Annexure G which appeared at page 40 of the paper book dated 11.7.1991 and this information was obtained by the applicants and was filed before the Hon'ble Delhi High Court and the Delhi High Court in its order dated 8.10.1991 has made a reference to those papers and has also mentioned "we direct the petitioner to file a fresh application before the Tribunal for stay and with that application he may attach the material which he has now got to satisfy the Tribunal that the thinner can be manufactured by manual process also i.e. without the use of power as well. Shri Bhardwaj also drew the attention to page 42 of the stay application where the process of manufacture has been given. He pleaded that no power was used in th manufacture of thinner and as such if the appellants are required to pay the duty amount and penalty amount it will amount to undue hardship. He pleaded for the grant of the stay.
Shri Sanjeev Behari, learned SDR pleaded that since power was used for moving the raw material and as such it will amount to manufacture with the aid of power in terms of provisions of Section 2(0 of Central Excises and Salt Act, 1944. In support of his arguments he cited SC decision in the case of CCE v. Rajasthan Slate Chemical Works reported in 1991 (53) ELT 444 SC : 1991 (36) ECR 465 (SC). He pleaded for the rejection of the stay application.;
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