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TMI Blog2007 (9) TMI 51X X X X Extracts X X X X X X X X Extracts X X X X ..... ch the Appellant who is squarely covered by a decision of the Tribunal in the case of Mahavir Generics v. Commissioner of Central Excise, Bangalore reported in 2006 (3) S.T.R. 276 (Tribunal) = 2004 (170) E.L.T. 78 (Tri. - Del.), was denied justice. According to the learned Sr. Counsel, the definition of Clearing and Forwarding Agent not interpreted on the touch stone of law by the Authorities below, the agreement was held otherwise, while the agreements of Mahavir Generics and the Appellant are in the pari materia. Had the Authorities examined the entire agreement in the light of the decision of the Mahavir Generics case, the Appellant would not have been prejudiced. Therefore, without looking to the substance of the agreement and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... forwarding agent. Shri Khaitan, learned Senior Advocate has made a specific mention about both the questions dealt by the Larger Bench in the case of Medpro Pharma Pvt. Ltd. v. Commissioner of C. Ex., Chennai reported in 2006 (3) S.T.R. 355 (Tri.- LB) and the manner how such questions were answered that can be gathered from para 35 of the reported decision. For the very cogent reason that the Appellant was neither a clearing and forwarding agent nor was covered by either Medpro Pharma Pvt. Ltd. decision or Super Poly Fabriks Ltd., the Appellant should be held to be squarely covered by Mahavir Generics case. According to him, his submission is founded on the factual agreement available on record. None of the terms of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on record. Learned First Appellate Authority should do well to take advantage of the decisions aforesaid and examine the agreement of the Appellant afresh without- being influenced by past decision and draw a proper conclusion. In this context, learned Senior Counsel's submission that Mahavir Generics case was not at all overruled, should be given a serious thought by learned Appellate Authority below and the lower Appellate Authority should not be guided or influenced by the Head Notes of the reported decision in the Medpro Pharma Pvt. Ltd. which shows that Mahavir Generics case was overruled while that was not actually so by express language in the said reported decision. It is needless to mention that in the entire body of th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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