9911796707
TMI Blog1999 (10) TMI 79X X X X Extracts X X X X X X X X Extracts X X X X ..... r and found that the petitioner was operating the factory without registration and maintaining statutory records and was liable to pay Central Excise duty on the intermediate goods i.e. laminated printed paper sheets (covered by BOPP Film) which were being used captively in the manufacture of corrugated boxes and he was also liable to pay duty on paper cones as their clearance of laminated printed paper sheets and paper cones exceed the small scale exemption limit. Consequently, a show case notice was served upon the petitioner requiring him to show cause as to why the goods seized may not be confiscated and why he may not be penalized for contravention of the various provisions of the Central Excise Act, and Rules. He was also required to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nding Counsel for the respondents have been heard. With the consent of the learned counsel for the parties the petition is being disposed of finally at the admission stage itself. 4. Besides other submissions made by Shri Mathur, the petition is pressed mainly on two grounds, firstly that the petitioner had specifically taken a ground of financial constraint and hardship which has not been considered by the Commissioner (Appeals) while passing the impugned order and secondly that against the notice the petitioner had filed objection on the ground that the demand was barred by limitation and such a ground was also taken in the memo of appeal and was further pressed at the time of pressing of Waiver-cum-stay application which has not been c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmissioner (Appeals) copy of the balance sheet. A perusal of the order of the Commissioner (Appeals) shows that the questions of hardship and financial constraint alleged by the petitioner have not been considered by the Commissioner although the merit of the case has been touched while passing the impugned order. It is true that while considering the application for waiver-cum-stay under Section 35F of the Act to find out a prima facie case and balance of convenience the Commissioner may go into the merits of the case but at the same time he has to also consider the undue hardship that may be caused to the petitioner. The plea of undue hardship was specifically taken by the petitioner in his waiver-cum-stay application but the same has not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Act and the Rules made thereunder with intend to evade payment of duty by such person or his agent. The question, therefore, arises whether in the facts and circumstances of the present case there was a mis-statement or suppression of facts on the part of the petitioner. The extension of limitation shall depend upon the findings of fact. The ground of limitation was specifically taken by the petitioner in the memo of appeal. In application dated 2nd February, 1999 which was moved before the Commissioner (Appeals) it was stated that the suppression of facts is not at all applicable and entire show cause is time barred. The Commissioner (Appeals) while disposing of the waiver-cum-stay application of the petitioner has not considered t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9. The submission of Shri Kesharwani relates to fact which can be considered by the Learned Commissioner (Appeals) while disposing of the waiver-cum-stay application. In the instant case, as is evident from the perusal of the order passed by the Learned Commissioner (Appeals), the question of the notice being barred by limitation has not at all been considered. 10. In this view of the matter the petition succeeds and is allowed in part. The order passed by the Appellate Commissioner dated 17-6-1999 is hereby set aside and the Appellate Commissioner is directed to consider the point regarding undue hardship as well as regarding the show cause notice being time barred in a prima facie manner and to dispose of the application of the petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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