9911796707
TMI Blog1992 (7) TMI 200X X X X Extracts X X X X X X X X Extracts X X X X ..... not satisfied with the order passed by the Tribunal, the appellants have moved a Miscellaneous Application making a prayer for the modification of the stay order. Shri G. Prabhakara Sastry and Shri V.K. Durai Raj, advocates have appeared on behalf of the appellants and Smt. Ananya Ray, the learned SDR, for the respondent. Shri Durai Raj, the learned advocate, has pleaded that no details as to the quantification of demand has been given to the appellants but they have learnt that this demand has resulted because of the denial of benefit of proviso (2) to Notification No. 71/71-C.E., dated 29-5-1971. Shri Durai Raj pleaded that when the stay application had come up for hearing before the Tribunal on 27-4-1992 the basis of quantification was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tification is extended, the amount of demand will come to a very negligible amount and that the same will also be hit by limitation. He pleaded that if the earlier order passed by the Tribunal is not modified the appellants shall suffer an irreparable loss and since the Collector (Appeals) has mentioned in his order that the appellants have not disputed the quantification of demand in the grounds of appeal, the matter may be remanded. 2. Smt. Ananya Ray, the learned SDR, who has appeared on behalf of the respondent, fairly stated that in the Order of the Assistant Collector there is no quantification and the grounds of appeal filed by the appellants before Collector (Appeals) was not specific and even before the Tribunal, in the grounds o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... through the records of the case carefully and considered the submissions made in their written explanation and at the time of personal hearing. Their contention that the notice is hit by the six months time bar is not accepted since they have suppressed the fact that LDPE films manufactured by them and used captively are rigid plastic films only after the sample was sent to the National Test House Alipore Calcutta, it was ascertained as per the test certificate issued by the National test House that the LDPE films manufactured by M/s. Technopack Private Limited, are rigid plastic films and chargeable to duty upto 22-10-1982. Since they have not obtained a Central Excise licence and not maintained any records the charge that they have contra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... art of the demand is beyond 5 years period of limitation. 4. Shri G. Prabhakara Sastry, Consultant and Shri C. Madhusudan, G.M. (R A) were heard on 17-2-1992 when they reiterated the above grounds in detail. 5. I have examined the impugned order and the contentions of the appellants carefully. In view of the confirmation of the demand for the period from 23-10-1977 to 24-11-1978 by the Hon ble High Court of Andhra Pradesh and in view of the observations of the Supreme Court that the appellants can pursue the statutory remedy with regard to quantification of the duty, the undersigned is competent only to examine the dispute, if any, with reference to the quantification of duty i.e. Rs. 6,67,514.39. Appellants have not disputed the quan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y Notification No. 113/77-C.E., dated 18-6-1977. The Hon ble Andhra Pradesh High Court in the case of Commissioner of Income-tax v. Gangappa Cables Ltd. reported in 116 ITR 778 has observed as under :.- The Appellate Tribunal disposing of an appeal under the I.T. Act has got the power to allow the assessee to put forward a new claim, notwithstanding the fact that such a claim was not raised by him before the ITO or the AAC, provided there is sufficient material on record to allow such a claim. The assessee, for the first time, raised a plea in second appeal before the Appellate Tribunal that the expenditure incurred by the assessee before it went into commercial production was an admissible deduction for the purpose of S. 80J(1) of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y order passed by the Tribunal should be modified. Accordingly, we are of the view if the benefit of Notification No. 71/71-C.E. is extended to the appellants the amount of demand will come to a very negligible amount. In these circumstances, we are of the view that if the appellants are desired to deposit the duty amount of Rs. 6,67,514.39 it will amount to undue hardship and earlier order No. 137/92-CE, dated 26-5-1992 is modified accordingly. Accordingly, we dispense with the pre-deposit of the same. During the course of arguments the learned advocate has made a prayer for remanding the matter for fresh examination by the Collector (Appeals) in accordance with law and to this request of the learned advocate, the learned SDR has no object ..... X X X X Extracts X X X X X X X X Extracts X X X X
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