9911796707
TMI Blog2016 (4) TMI 448X X X X Extracts X X X X X X X X Extracts X X X X ..... f Central Excise, Delhi-III was justified in law? 2. The Petitioner is manufacturer of various types of motor vehicles. On 24th December 1996, the Commissioner of Central Excise (CCE) passed an order confirming the central excise demand of Rs. 26,59,620 and penalty of like amount against the Petitioner. The appeal filed by the Petitioner against the said order was decided by the Customs Excise & Gold (Control) Appellate Tribunal ('CEGAT') by order dated 22nd December 1998 by a majority of 2:1. The CEGAT confirmed the demand of excise duty as determined by the CCE but reduced the penalty to Rs. 5 lakhs. 3. Against the aforementioned order of the CEGAT, the Petitioner preferred an application for reference under Section 35G of the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as to when a reference could be said to be pending, the answer was "If the taxpayer has filed within the statutory time a legally valid reference application under Section 256(1) or 256(2) of the Income Tax Act, 1961, the condition of pendency of reference could be said to have been satisfied". 7. The Petitioner has also referred to another clarification/circular issued by the Government of India the relevant portion of which reads as follows: "4. The legal provisions for the scheme were incorporated in Chapter-IV of the Finance (No.2) Act, 1998. It may be observed that no separate schemes for Direct Tax side and Indirect Tax side have been incorporated and the scheme is common. One has, therefore, to read carefully the relevant portions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nding consideration. 11. The short question that arises for consideration is whether the pendency of the Petitioner's RA before the CESTAT satisfies the requirement for acceptance of the Petitioner's declaration under the KVSS. 12. Learned counsel for the Respondent has drawn attention to the decision of the Supreme Court in CIT v. Shatrusaila Digvijay Singh Jadeja 2005 (192) ELT 3 (SC), where it was held that the mere fact that an appeal that has been filed may not be maintainable would not mean that no appeal is pending before the Court. In such circumstances the filing of the declaration under KVSS could not be held to be ineffective or infructuous. However, as already noticed, the KVSS was no different in its application wheth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 15. Further it has been clarified that there could be cases where there may be no procedure for admitting an appeal and in such cases the mere proof of filing an appeal would be sufficient. In other words, as far as the RA filed by the Petitioner is concerned, since there is no procedure of 'admitting' such an RA, the mere proof of pendency of the RA before the CESTAT should be sufficient for accepting the declaration filed by the Petitioner under the KVSS. 16. For the aforementioned reasons the impugned letters dated 9th March 1999 and 13th April 1999 issued by the Respondent No.3 are hereby quashed. A direction is issued to the Respondent to accept the declaration filed by the Petitioner under the KVSS and furnish it in accordan ..... X X X X Extracts X X X X X X X X Extracts X X X X
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