Custom, Excise & Service Tax Tribunal
M/S Himalaya International Ltd vs Cce, Chandigarh on 31 March, 2010
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
NEW DELHI
COURT NO. II
Excise Appeal No. 1782 of 2005-Ex.
M/s Himalaya International Ltd. Appellant
Vs.
CCE, Chandigarh Respondent
Date of Hearing: 31.3.2010 Appearance :
Appeared for Appellant - Shri B.L. Narasimhan, Advocate
Appeared for Respondent - Shri B.K. Singh, Jt. CDR
CORAM: HONBLE MR. D.N. PANDA, JUDICIAL MEMBER
HONBLE MR. RAKESH KUMAR, TECHNICAL MEMBER
Order No.dated.
Per D.N. Panda:
Ld. Counsel Shri Narasimhan submits that these appellants are in second round of litigation before Tribunal for the reason that they have been aggrieved by the appellate order passed by ld. Commissioner on 10.2.05 ignoring the direction of the Honble Supreme Court made on 11th October 2004 in Civil Appeal 6768/04 (at page 151 of the paper book). His contention is that two fold test was required by the Apex Court to be conducted. One was to find out the rate applicable and the second one was whether the appellant is entitled to any exemption in respect of the goods manufactured out of the raw material produced in India. When there was specific direction, the material itself available on record could have been tested for resolving the issue. The materials were altogether ignored while those are existing on record.
2. To the above proposition of the Appellant ld. Jt. CDR Shri Singh submits that he has instructions from the concerned Supdt. that there were no materials provided by the Appellant to decide the issue before the authorities below. Further contention is that the ld. Appellate authority was bound to go with the available material before him. That authority has pointed out that the Appellant has not adduced evidence to prove its stand which is coming out from page-55 of the appeal folder dealing the operative part of the order dated 10.2.05.
3. When the rival submission comes aforesaid, we are not inclined to proceed further when the very basis is disputed by both sides. Therefore it would be proper to call for the record from adjudicating authority as well as appellate authority to examine the stand of both sides. In the course of hearing Revenue raised the point that when the appellant submits that records were maintained under the boards circular to prove its stand, the appellant is also required to place the same before the Tribunal so that the dispute can be resolved.
4. Ld. Jt. CDR says that he requires two weeks time for calling the record. That is allowed. Both sides take notice to appear on 27th April 2010 and prove stand of each other.
(Dictated & pronounced in open Court) (D.N. PANDA) JUDICIAL MEMBER (RAKESH KUMAR) TECHNICAL MEMBER RM