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M/s Vega Auto Accessories (Pvt) Ltd, Vs. Registrar, Customs, Excise & Service Tax Appellate Tribunal, & Anr.
May, 30th 2018
$~17
*       IN THE HIGH COURT OF DELHI AT NEW DELHI
+                         WRIT PITITION (CIVIL) 2189/2018
                                                Date of Decision: 9th May, 2018.
        M/s VEGA AUTO ACCESSORIES (PVT) LTD,                         ..... Petitioner
                               Through        Mr. Vibhor Mathur, Adv

                               versus

        REGISTRAR, CUSTOMS, EXCISE & SERVICE TAX
        APPELLATE TRIBUNAL, & ANR.             ..... Respondents

                               Through        Mr. Sanjeev Narula, Sr. Standing
                                              Counsel for Customs with Mr.
                                              Abhishek Ghai, Adv
        CORAM:
        HON'BLE MR. JUSTICE SANJIV KHANNA
        HON'BLE MR. JUSTICE CHANDER SHEKHAR

SANJIV KHANNA, J. (ORAL)

        Petitioner M/s. Vega Auto Accessories (Pvt) Ltd is a company against
whom       adverse       orders-in-original    were   passed   by   the    Assistant
Commissioner, Central Excise & Service Tax, Rampur (Uttar Pradesh).
These orders pertain to different periods, albeit the primary issue was
common, i.e., whether or not the petitioner had commenced commercial
production on or before 31st March, 2010, a requirement to obtain benefit of
exemption under the Notification No.50/03-CE dated 10th June, 2003. The
finding in orders-in-original was that the petitioner had not commenced
commercial production until 7th April, 2010 and, therefore, did not fulfill the
mandatory condition to avail the benefit under Notification dated 10th June,






W.P. (C) No.2189 /2018                                                 Page 1 of 4
2003. Accordingly, the petitioner was liable to pay Excise Duty including
Education Cess and Secondary Higher Education Cess as well as penalty of
under Rule 25(1) of the Act.

2.      Some of the orders-in-original were made subject matter of the
appeals before Customs, Excise & Service Tax Appellate Tribunal, which
appeals were allowed vide order dated 6th February, 2017 accepting the
stand and stance of the petitioner that it had commenced commercial
production on or before 31st March, 2010.

3.      Respondent/Revenue had thereafter preferred several appeals before
the High Court of Uttarakhand at Nanital which were dismissed vide order
dated 5th July, 2017 as not maintainable before the said High Court in view
of the judgment in Central Excise Appeal No.10/2015, Commissioner of
Central Excise & Sales Tax vs. M/s Trupati LPG Industries Ltd. decided
on 4th May, 2017. It is stated by the counsel for petitioner that respondents
have not preferred any appeal before the Supreme Court impugning the
order dated 6th February, 2017 in the case of the petitioner passed by the
Tribunal. In other words, the contention of the petitioner is that the order of
the Tribunal dated 6th February, 2017 that the petitioner had commenced
commercial production on or before 31st March, 2010, has attained finality
and has been accepted.

4.      The petitioner has filed the present writ petition with a prayer that the
appeal of the petitioner filed by Diary No.509852017 should be admitted for
consideration and heard, without insisting on pre-deposit under amended
Section 35F of Central Excise Act, 1944 in view of the earlier orders passed
by the Tribunal which have attained finality, upholding stand and stance of



W.P. (C) No.2189 /2018                                              Page 2 of 4
the petitioner on claim of exemption under notification dated 10th June,
2003.

5.      Learned counsel for the respondent/Revenue accepts that the Revenue
has not till today preferred any appeal before the Supreme Court impugning
the order of the Tribunal dated 6th February, 2017 upholding and accepting
the stand of the petitioner that they had commenced commercial production
on or before 31st March, 2010.

6.      In view of the aforesaid factual background, we are inclined to accept
the prayer made by the petitioner that the appeal filed before Tribunal vide
Diary No.509852017 should be admitted and heard without insisting on pre-
deposit under amended Section 35F of          the Central Excise Act.           The
petitioner has already succeeded before the Tribunal on the question of grant
of exemption under notification dated 10th June, 2003 in other connected
appeals. The said order of the Tribunal has attained finality as no appeal has
been preferred by the Revenue before the Supreme Court. Pre-deposit in
these circumstances would be a technicality and mere formality for the issue
is settled by an earlier order in favour of the petitioner. Secondly, the
petitioner has expressed and shown financial hardship and distress by
referring to balance sheet and profit and loss account for the year ending 31st
March, 2017, which reflects accumulated losses of over Rs.59,918,456.93.
Petitioner, it is stated, had earlier made pre-deposit of Rs.16,43,400/- for
hearing of decided appeals, which amount has not been refunded. This
amount has been adjusted towards amount payable against the impugned
order in original. The petitioner, it is stated, would have to make a further







W.P. (C) No.2189 /2018                                            Page 3 of 4
deposit of Rs.38 lacs approximately after accounting for and given benefit of
Rs.16,43,400/-.

7.       The view taken by us is in consonance with the decision of this Court
in Pioneer Corporation vs. UOI & Anr. 2016 (340) ELT 63 (Del) and
decision dated 27th April, 2018 in WP(C) 138/2018 Shubh Impex vs. UOI &
Ors.

8.       Accordingly, we dispose of the present writ petition and direct that the
Tribunal will admit and hear the appeal preferred by the petitioner without
insisting on pre-deposit of 7.5% of the tax and penalty.     We clarify that we
have not considered and examined merits of the appeal preferred by the
petitioner before the Tribunal. We also clarify that we have not specifically
gone into the issue regarding the date of commencement of commercial
production by the petitioner.

9.       The writ petition is accordingly disposed of, without any order as to
costs.



                                                SANJIV KHANNA, J.



                                                CHANDER SHEKHAR, J.

MAY 09, 2018
Sm/VKR




W.P. (C) No.2189 /2018                                              Page 4 of 4

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