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TMI Blog2015 (7) TMI 392X X X X Extracts X X X X X X X X Extracts X X X X ..... we are not in agreement with Mr.Dada that the Petitioner cannot approach the appellate authority. In the event the Petitioner approaches the Appellate Authority by filing an Appeal and within a period of four weeks from today, the Appellate Authority, namely, the Tribunal shall entertain the Appeal and not dismiss it on the ground that it is barred by limitation. The Tribunal shall permit the Petitioner to raise all contentions including that the issue must be examined in the light of the arrangements, prevalent practices and customs peculiar to the film industry. Such arrangements and which are in vogue for decades together do not create any relationship and which is assumed to be created by the Revenue. The Circular therefore will hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssioner of Central Excise, Thane II, an Appeal lies to the Appellate Tribunal. In that regard, our attention was invited to sub section (1) of section 86 of the Finance Act, 1994 as amended from time to time. It was submitted that whether the circular would govern the controversy or whether the controversy must be dealt with strictly in terms of the statutory provisions and the circular cannot override the same are contentions which can be raised conveniently before the Appellate Forum. The Appellate Forum is not thus prevented from considering all challenges to the impugned order and if appropriate grounds are raised in support of the ultimate prayer of quashing and setting aside the same. 3) Mr. Dada learned Senior Counsel appearing fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CC 478 and in the case of Gammon India Limited vs. Commissioner of Customs, Mumbai reported in 2011 (269) ELT 289 (SC) does not enable the authority to issue the Circular and thereafter bring the arrangement, which is ordinarily on a principal to principal basis, to tax as an Association of Persons or such other known legal entity. In the circumstances, no useful purpose will be served by going before the Appellate Tribunal. The Circular cannot be declared as ultra vires by that Tribunal. 5) We have taken note of Mr. Dada's contentions and at some length. With his assistance, we have perused the Petition and all Annexures thereto including the order passed by the Commissioner of Central Excise, Thane II. We have also perused the repl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a facie, it is not entirely based on the same. It is based on some understanding of the legal provisions by the Commissioner and their applicability to the given facts and circumstances. That may not be entirely accurate as urged before us. Similarly, the Hon'ble Madras High Court has also in somewhat similar backdrop clarified that merely making a reference to some Circular would not mean that the Appellate Tribunal cannot be approached or that the Appellate Tribunal will not view the matter in its entirety and in proper perspective. In the circumstances, we are not in agreement with Mr.Dada that the Petitioner cannot approach the appellate authority. 7) In order to take care of his apprehension, we clarify that in the event the Pet ..... X X X X Extracts X X X X X X X X Extracts X X X X
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