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TMI Blog2017 (3) TMI 350X X X X Extracts X X X X X X X X Extracts X X X X ..... 68 / 2017 - Dated:- 17-2-2017 - Shri S. S. Garg, Judicial Member Mr. B.N. Patel, Authorized Rep. For the Appellant Mr. N. Jagadish, AR For the respondent ORDER Per S. S. Garg The appellant has filed a ROA seeking restoration of appeal which was dismissed by the Tribunal on 30.11.2016 for non-prosecution. The learned appellant has stated that the similar appeal was already pending before the Tribunal where the issue was identical and the appellant had requested the Registry to fix both the appeals together on 2.12.2016. He further submitted that in spite of the request, the Registry did not list both the appeals together and on 2.12.2016 the appellant himself appeared and argued the case which was disposed of on that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g. Samples were drawn by them for in-house testing without following the procedure prescribed under Chapter 11 of the CBEC s Excise Manual of Supplementary Instructions, 2005. Thereafter a show-cause notices were issued to them demanding the excise duty on samples cleared for the total period from period from October 2003 to December 2008, under Section 11A of the Central Excise Act, 1944 and interest and penalties are also proposed. Thereafter by Order-in-Original, the duty was confirmed and aggrieved by the said order, appellant filed an appeal before the Commissioner but along with appeal, no application for waiver of pre-deposit was made nor any deposit was made and the Commissioner vide the impugned order has rejected the appeal being ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not complete at the stage when the samples were drawn. (i) Omega Pharma Vs. CCE, Rajkot: 2006 (206) ELT 908 (Tri.-Mumbai) (ii) Exon Laboratories Pvt. Ltd. Vs. CCE, Mumbai: 2006 (205) ELT 952 (Tri.-Mumbai) (iii) CCE, Hyderabad Vs. Gulf Oil Corporation Ltd.: 2006 (201) E.L.T. 433 (Tri.-Bang.) (iv) CCE, Hyderabad-IV Vs. Gulf Oil Corporation Ltd.: 2007 (213) E.L.T. 380 (Tri.-Bang.) 4. In view of the above observations, there is no merit in the demand of duty on the samples cleared to in-house lab testing. Hence, I set aside the impugned order and allow the appeal with consequential relief. 5. On the other hand, the learned AR submitted that the learned Commissioner (Appeals) has not decided the issue on merit but ..... X X X X Extracts X X X X X X X X Extracts X X X X
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