9911796707
TMI Blog1991 (1) TMI 250X X X X Extracts X X X X X X X X Extracts X X X X ..... order No. 114/1990-B1 dated 20th March, 1990, as there was no quantification of demand. Thereafter, a fresh stay application duly supported with an affidavit sworn before a Notary Public was filed requesting the Tribunal to dispense with the pre-deposit of the duty amount of Rs. 82,72,410.60 and penalty of Rs. 2,00,000.00. The Tribunal vide stay order No. 249/90-B1 dated 18th July, 1990 had disposed of the same on the condition of the applicant s depositing Rs. 30,00,000.00 (Rs. thirty lacs only) within three months from 18th July, 1990. The stay order passed by the Tribunal was challenged before the Hon ble Delhi High Court by a writ petition under Articles 226 and 227 of the Constitution of India and in the writ petition the applicant had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er of the Collector of Central Excise dated 29-12-1989/12-2-1990 (Annexure-F) and the directions contained in the letter dated 12th June, 1990, issued by the Assistant Collector of Central Excise, Respondent No. 3 (Annexure-H); (d) award the costs of the writ petition; and (e) pass such other and further orders as may be deemed just and proper in the facts and circumstances of the case." Simultaneously, a stay application duly supported with an affidavit was also filed and in the said application the applicant had made the following prayer :- (a) grant stay of the order of the Tribunal dated 18th July, 1990 insofar as it directs the petitioner to deposit a sum of Rs. 30 lacs as a condition for dispensing with pre-deposit under S. 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... grounds :- (i) The matter is covered by an earlier judgment of the Tribunal in the case of Indian Iron and Steel Co. Ltd. v. Collector of Central Excise, Bolpur reported in 1990 (46) E.L.T. 409. (ii) The demand is time-barred. (iii) There is recurring effect. (iv) The stay order passed by the High Court in C.M. 5677/90 dated 21st November, 1990 does not come in the way of hearing of the appeal in terms of provisions of Section 35F of the Central Excises and Salt Act, 1944. He has pleaded for the grant of early hearing. 2. Shri M.S. Arora, the learned JDR who has appeared on behalf of the respondent pleaded that the earlier judgment of the Tribunal in the case of Indian Iron and Steel Co. Ltd. v. Collector of Central Excise repo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gone through the facts and circumstances of the case. We have also gone through the earlier order of the Tribunal in the case of Indian Iron and Steel Co. Ltd. reported in 1990 (46) E.L.T. 409. On internal page 6 which appears on page 23 of the paper book in the said order there is an observation of the Tribunal that: So long as the excisable goods are manufactured in a workshop within a factory and intended for the use in the said factory for the purpose of repair and maintenance of machinery, the exemption cannot be denied on the score that only goods capable of manufacture in a workshop which is restricted to a tool-room is eligible for exemption." In the matter before us, the factory is located at a distance of 10 Kms. from the other f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the revenue authorities so choose to create demand for future clearances on the basis of the impugned order, they can do so only in accordance with law." For the proper appreciation of legal position Section 35F is reproduced below :- Section 35F. Deposit, pending appeal, of duty demanded or penalty levied :- Where in any appeal under this Chapter, the decision or order appealed against relates to any duty demanded in respect of goods which are not under the control of Central Excise authorities or any penalty levied under this Act, the person desirous of appealing against such decision or order shall, pending the appeal, deposit with the adjudicating authority the duty demanded or the penalty levied : Provided that where in any pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t s depositing Rs. 30,00,000.00 (Rs. thirty lacs only) in cash within three months from 18th July, 1990. While passing the stay order, we had looked into the prima facie merits as well as the liquidity position of the applicant in view of the judgment of the Delhi High Court in the case of Uptron Powertronics v. Collector of Central Excise, Meerut, reported in 1987 (28) E.L.T. 61. We had also looked into the liquidity position of the applicant in view of the judgment of the Supreme Court in the case of Sonodyne Television Company. v. Collector of Central Excise, Calcutta, reported in 1985 (22) E.L.T. 582. Judgment of the Supreme Court in the case of Spencer and Co. Ltd. v. Collector of Central Excise is reproduced below :- We are in agre ..... X X X X Extracts X X X X X X X X Extracts X X X X
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