Mayo (India) Ltd. vs Collector Of Central Excise
1995 Latest Caselaw 980 Del

ORDER

Dr. M.K. Sharma, J.

1. The petitioner, being aggrieved by the order dated 1-5-1995 passed by the Customs, Excise & Gold (Control) Appellate Tribunal, (in short CEGAT), directing the petitioner to make a pre-deposit of an amount of Rs. five lakhs on a condition precedent for entertaining the appeal of the petitioner, has preferred this writ petition seeking to challenge the said order passed by the CEGAT on the application for stay and dispensation of pre-deposit.

2. The learned counsel appearing for the petitioner submitted before us that one of the major contentions of the petitioner at the time of hearing of the stay application before the CEGAT was that in respect of the manufacture of excisable goods at the places of the loan licensees, the Excise department had collected the duty from the loan licensees, thereby recognising the loan licensees to be the manufacturer in respect of the said goods accordingly in view of the provisions of Rule 7 of the Rules providing that the duty is to be paid by and collected from the person who produces or manufactures the excisable goods, the respondent department has no jurisdiction to collect duty from the petitioner in respect of the same goods for the second time. According to the petitioner the actions of the respondent department in levying duty on the same goods for the second time on the petitioner amounts to double taxation and, therefore, ex facie is not leviable.

3. The learned counsel drew our attention to the memorandum of appeal filed before the CEGAT and particularly to Paragraph 6 of the same wherein the aforesaid contention was specifically raised by the petitioner. We were also taken through the impugned order passed by the CEGAT. We find that CEGAT although has specifically dealt with the pleas of the petitioner with regard to the demand being time-barred and the issue arising in the appeal filed by the petitioner being directly and squarely covered in favor of the petitioner by several judgments of the CEGAT, High Courts and the Supreme Court and also with regard to the plea of undue hardship that would be caused to the petitioner, if the petitioner's plea for waiver of pre-deposit of the demand is not accepted, did not at all consider the aforesaid plea raised by the petitioner with regard to the demand being without jurisdiction as it would amount to double taxation.

4. The petitioner in this writ petition has made a categorical statement that the said plea was specifically raised before the CEGAT at the time of hearing of the stay application but the same was not considered by the CEGAT. No counter-affidavit has been filed by any of the respondents in the present writ petition inspite of several opportunities afforded. The aforesaid statement of the petitioner, therefore, remains unrebutted. We have, therefore, no material placed before us by the respondents in respect of the said issue even for considering the merit of the same.

5. Under the aforesaid circumstances, we have no other option left to us but to remand the case back to the Tribunal for considering and giving its decision on the said plea also in accordance with law after giving a hearing to the parties on the said plea. The parties shall, therefore, appear before the Tribunal on 10-1-1996 for necessary orders and the next date for further hearing of the matter.

6. With the aforesaid observations and directions, this writ petition stands allowed to the extent indicated above, but without any costs.