Audco India Ltd. vs Union Of India (Uoi) And Ors.
2003 Latest Caselaw 1023 Bom

Citation : 2003 Latest Caselaw 1023 Bom
Judgement Date : 8 September, 2003

Bombay High Court

Audco India Ltd. vs Union Of India (Uoi) And Ors. on 8 September, 2003

Equivalent citations: 2003 (111) ECR 141 Bombay

Bench: V Daga, J Devadhar

ORDER

1. Rule, returnable forthwith. Heard by consent of parties.

2. The issue sought to be raised before the Tribunal and before this Court is identical. The order of the Tribunal dated 19th June, 2003 challenged in this petition under Section 35F of the Central Excise Act, 1944 ("The Act for short directs pre-deposit in the sum of Rs. 20,00,000/-. The issue sought to be raised is whether or not the denial of credit of duty paid on 'non-moving' and 'slow-moving' inputs is legal and valid.

3. The learned Counsel appearing for the Petitioners relying on the Judgment of the Tribunal in the case of Bharat Heavy Blectricals Ltd. v. CCB, Bangalore reported in 2002 (50) RLT 208 (T-Ban.) contended that the issue sought to be raised by the Petitioners in the appeal is squarely covered in their favour. He submitted that if at all the Tribunal wanted to take any other view, it was open only after dealing with the said Judgment; that too after distinguishing the same or by referring it to a Larger Bench, but not by-passing the same by omitting to refer. It is no doubt true that there is reference to this Judgment in the order of the Tribunal, but there is no discussion as to whether it was applicable or not. The Tribunal ought to have discussed the said Judgment in its order or should have distinguished it.

4. Having examined the submissions made in the backdrop of the facts of this case, the issue sought to be raised in this petition seems to be prima facie covered by the Judgment of CEGAT in Bharat Heavy Electricals Ltd. (supra). In this view of the matter, the Petitioners/Appellants before the Tribunal having made out a prima facie case, we feel that the Tribunal was not justified in directing pre-deposit of Rs. 20,00,000/-.

5. In the above view of the matter, we quash and set aside the order of the Tribunal and direct the Tribunal to hear the appeal filed by the Petitioner without any pre-deposit.

6. In the result, Petition stands allowed with no order as to costs.

7. All rival contentions of the parties on merits are kept open. Tribunal shall be free to decider appeal on its own merits treating our observations as prima facie.

8. All concerned to act on the ordinary copy of this order duly authenticated by the associate.