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TMI Blog2007 (11) TMI 567X X X X Extracts X X X X X X X X Extracts X X X X ..... sion must have interest in the business of the dealer alleged to be the related person and in turn the dealer alleged to be the related person to the petitioner-appellant should have interest in the business of each other, which means mutuality of interest. W.P. allowed and remanded. Set aside the impugned order dated March 31, 2007 passed by the first respondent and remit the matter to the first respondent with a direction to pass appropriate orders in accordance with law with reference to the findings of the Supreme Court in Atic's case [supra] as directed by the Tribunal, within a period of eight weeks from the date of receipt of a copy of this order. Counsel for the petitioner is given liberty to produce necessary material to satisfy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vied tax on the differential turnover between the turnover of the petitioner and the RPL. According to the petitioner the said order passed by the first respondent is factually incorrect and legally unsustainable. It is the further case of the petitioner that against the said orders of assessment the petitioner preferred appeals before the Appellate Deputy Commissioner (CT) who by his order dated September 27, 2003, following the decision of the Supreme Court in Alembic Glass Industries Ltd. v. Collector of Central Excise Cus. [2002] 143 ELT 244 held that Rasna Private Limited, a company registered under the Companies Act, is distinct from the petitioner, a proprietary concern owned by the family trust and the theory of related person ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hing the same is on the Revenue. Having held so, the Tribunal remanded the matter to the assessing authority so as to afford an opportunity to the Department to establish the theory of related person, if any. The grievance of the petitioner is that the CTO did not follow the directions issued by the Appellate Tribunal and though it was no longer necessary for him to consider whether Atic's case [1984] 17 ELT 323 (SC) has relevance for the purpose of invoking clause (iv) of the Explanation to section 2(1)(s) of the Act and all what was required to consider whether the parameters set out in Atic's case [1984] 17 ELT 323 (SC) are present in the petitioner's case, it totally erred in observing that the Atic's case [1984] 17 ELT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rd. The learned counsel for the petitioner reiterated the contentions raised in the affidavit filed in support of the writ petition as well as in the reply and additional reply affidavits. The main contention of the learned counsel for the petitioner is that the CTO being a subordinate authority to the Appellate Tribunal, instead of following the direction of the Appellate Tribunal to follow the findings of the Supreme Court in Atic's case [1984] 17 ELT 323 and to complete the final assessment which are overdue for completion, he has given his own finding that the Atic's case [1984] 17 ELT 323 (SC) has no relevance in the context and thus passed the impugned order totally on an erroneous consideration of the matter and therefore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n also shall have interest in the business of the dealer sought to be brought under section 2(1)(s)(iv) of the Act. It is not ascertainable from the material papers made available at the time of hearing, the quantum of interest that the appellant herein is having in the business of M/s. Rasna Pvt. Limited and vice versa. While the facts remain that the entire sales of M/s. Pioma Industries were effected to M/s. Rasna Pvt. Ltd., the fact of sale of more than 3/4th of production to a distributor is not sufficient to establish a case under section 2(s)(iv) of the APGST Act. The fact of related person as enlightened in Atic's case [1984] 17 ELT 323 (SC) is also to be satisfied. Therefore, it is felt imperative in the interest of equity an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etitioner-appellant is having in the business of M/s. Rasna Pvt. Limited and vice versa and that the fact of more than 3/4th of sales to a distributor is not sufficient to establish a case under section 2(1)(s)(iv) of the APGST Act and that the fact of related person as enlightened in Atic's case [1984] 17 ELT 323 (SC) is also to be satisfied. Thus, the Tribunal thought it very much necessary that the findings of the Supreme Court in Atic's case [1984] 17 ELT 323 are required to be followed in the matter and accordingly remitted the matter to the assessing authority with a direction to follow the findings of the Supreme Court in Atic's case [1984] 17 ELT 323 and to complete the final assessment. But, as could be seen from the im ..... X X X X Extracts X X X X X X X X Extracts X X X X
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