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2010 (1) TMI 1002 - AT - Central ExciseNCCD - clearance for captive consumption to 100% EOU - Held that - NCCD is payable were rendered because the other decisions holding a contra view were not brought to the notice at the time of hearing - this is an appropriate case for unconditional waiver of pre-deposit and grant of stay during the pendency of appeal - appeal allowed - decided in favor of appellant.
Issues:
Demand of NCCD on clearance of partially oriented yarn for captive consumption to 100% EOU. Analysis: The issue in this case revolved around the demand of NCCD on the clearance of partially oriented yarn for captive consumption to a 100% EOU. The appellant argued that previous decisions by the Tribunal and the Commissioner (Appeals) supported their position that NCCD was not payable in such cases. The advocate highlighted specific cases like M/s. Modern Petrofils Ltd., Tatra Trucks India Ltd., and J.B.F. Industries Ltd. to strengthen their argument. On the contrary, the Departmental Representative (DR) referred to other Tribunal decisions in the cases of Paras Petrofils Ltd. and Superfine Syntex Pvt. Ltd., where it was held that NCCD was payable in similar circumstances. Upon considering the submissions from both sides, the Tribunal noted that the decisions where NCCD was held payable were rendered without being aware of the contrary decisions. The Tribunal acknowledged the principle of per incuriam in such situations. Additionally, the Tribunal observed that there were three decisions in favor of the appellants, supporting their stance on the NCCD issue. Consequently, the Tribunal deemed it appropriate to grant an unconditional waiver of pre-deposit and stay against the recovery of the duty demanded along with interest during the pendency of the appeal. In conclusion, the Tribunal ruled in favor of the appellant, granting the waiver of pre-deposit and stay during the appeal process. The decision was based on the acknowledgment of previous Tribunal decisions supporting the appellant's position and the application of the principle of per incuriam to the conflicting decisions on the NCCD issue.
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