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TMI Blog2010 (9) TMI 1018X X X X Extracts X X X X X X X X Extracts X X X X ..... r that there is a circular of the Board instructing that no refund claim shall be held up on the ground that an appeal has been filed unless a stay order has been obtained against the order on the strength of which refund is claimed. In further support of this application, the learned JCDR submits that the order passed by the learned Commissioner has proceeded on a wrong premise. It is submitted that even the issues framed by the adjudicating authority are beyond the scope of the show cause notice. In his bid to establish this point, the JCDR has invited our attention to various aspects of the impugned order vis- -vis the case made out in the show cause notice. The learned JCDR has also claimed a strong prima facie case for the Revenue on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ely but whether she arrived at appropriate conclusion on the valuation issue arising from the show cause notice. The learned counsel points out that it was open to the respondent to seek clarification from the Legal Metrology Department. They obtained a clarification from the Deputy Controller of Legal Metrology, Maharashtra State, according to which Rule 6(1)(f) of Chapter II of the Standards of Weights and Measures (Packaged Commodities) Rules, 1977 are applicable to the products of the respondent. While conceding that the clarification was subsequently withdrawn, the learned counsel points out that such withdrawal of clarification by the Legal Metrology authority was not on merits but on extraneous grounds. The learned counsel has also c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dealers and that some of these products were consumed by the salons for their professional service and other products sold in retail to their clients, alleged that the respondent was required in law to pay duty of excise on those goods which were sold through dealers to salons and were consumed by the latter, in terms of Section 4 of the Central Excise Act. It was alleged that this stream of goods did not satisfy the legal requirements for assessment under Section 4A of the Act. In this connection, it was alleged that these goods, which were ultimately consumed by the salons, were exempted till 14-1-2007 from the purview of Section 4A of the Central Excise Act by virtue of Rule 34 of the Standards of Weights and Measures (Packaged Commodit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... products and the retail products were sought to be subjected to levy of duty of excise under Section 4 of the Central Excise Act. The tenor of the Commissioner s order as seen from the subsequent paragraphs is no different. The conclusion reached by the Commissioner in para 52 of the order reads thus, In view of the above, I hold that the sales of the professional products through dealers either to salons or through them to the retail customers do not fall under the category of industrial or institutional consumers and therefore, they do not fall under the purview of either Rule 34 (upto 13-1-2007) or under Rule 2A (from 14-1-2007). Since all sales other than to industrial or institutional consumers are subject to the provisions of the Sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etation of the policy and on appreciation of evidence and, therefore, such an order could not be considered to be arbitrary or perverse to be stayed. In the instant case, we have already found that, right from the stage of framing of issues to that of recording the conclusion, the learned Commissioner assumed that the department sought to levy duty not only on the technical products (which were ultimately consumed by the salons) but also on the retail products (which were sold by the salons to their clients). We have also found that the Commissioner interpreted certain provisions of the Standards of Weights and Measures (Packaged Commodities) Rules, 1977 and applied the same on this premise. The learned counsel, according to us, cannot legi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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