TaxTMI 
TaxTMI 
2013 (10) TMI 1049
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....t. A supplementary affidavit with the grounds on the condonation of delay was filed, to which counter affidavit has been filed by the respondents. 4. A fresh application for condonation of delay along with affidavit of Farah I Gupta, Deputy Commissioner, Central Excise, Division-III, Ghaziabad was filed on 10th July, 2012, explaining the delay from the date of the order by which the Writ Tax No.1339 of 2001 filed by the Commissioner of Central Excise, Meerut was dismissed by the Division Bench of this Court on 3.5.2010 on the ground that against the order of the Tribunal a reference lies under Section 35G of the Central Excise Act. 5. Brief facts giving rise to this reference, for consideration of the application for condonation of delay are that a show cause notice was issued to M/s Moon Beverages Ltd.-the respondent on 22.3.1994 on the basis of intelligence gathered that M/s Moon Beverages Ltd. (M/s MBL) is engaged in the manufacture of aerated water falling under heading 22.01 and 22.02 of the schedule to the Central Excise Tariff Act, 1985. M/s MBL was found evading central excise duty by resorting to suppression of production and clandestine removals. On a search of the fact....
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.... ground that for the year 1989-90, 1991-92 the appellants were not enjoying benefit of MODVAT on aerated water. They were not keeping the account in statutory form for quantities of concentrates. The quantities were, however, reflected in their records maintained for the sales department as well as the balance sheet prepared for the financial year. The quantity of concentrates destroyed due to drainage or use in excess due to saline nature of water was not included in the records. The refrigeration / cooling system in the factory was not operational at times resulting into the water becoming saline and thus more concentrates were required to be used for quality and flavour. During these years the difference between figures of NABB supplied by PEL and figures in records of the assessee was only the quantity of concentrates either drained out or used in excess. For the subsequent years namely 1992-93 and 1993-94 the records and the Form IV Register and RG-23A were duly authenticated and periodically scrutinized by the Central Excise Officer. Almost all the inputs were covered under MODVAT Scheme and the quantities reflected in RG-23A Register, which was authenticated by the departmen....
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.... ½ months sent a letter to Shri Ajay Singh and Shri Zafar Moonis to provide all relevant records of the case to file appeal in the High Court. The Chief Commissioner, Central Excise wrote a letter to the Commissioner, Customs and Central Excise, Ghaziabad to seek legal opinion to decide the course of action vide his letter dated 4.2.2011. The legal opinion was sent by Shri Zafar Moonis and Shri Ajay Singh, Advocate on 7.2.2011 to Asstt. Commissioner, Central Excise, Division-III, Ghaziabad to file appeal under Section 35G of the Act. A clarification was sought by the Superintendent, Central Excise, Division-III, Ghaziabad from Shri Zafar Moonis about the dates of filing of the writ petition as there were different dates available in the records intimated by Shri S.N. Srivastava, Advocate-Sr. Standng Counsel and Shri Bhupendra Nath Singh, Sr. Standing Counsel. Information was also sought about the date of admission of the writ petition and whether the notices were sent to the respondents. Another letter was sent on 9.3.2011 to Shri Zafar Moonis, Sr. Standing Counsel to approve the grounds of appeal and questions of law. The reminder was sent on 28.3.2011 to the same request t....
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....pplication was filed before the Tribunal and hence the present petition is not maintainable. Shri Sinha further submits that without exhausting the remedies under the provisions of Section 35 (G) (1) and (2), a party or the department not eligible to file a petition directly before the High Court as contained under Clause 3 of Section 35G. It is only on refusal of the Tribunal of the application under Section 35G on the ground that no question of law arise, the Commissioner of Central Excise or other party can file reference within six months from the date of such refusal. 15. We have examined the records and find that the Central Excise Department has been grossly negligent in pursuing the matter. The order of CEGAT allowing the appeal of the assessee and dismissing the appeal of the department was passed on 28.5.1999, against which a Special Leave to Appeal was filed before the Supreme Court, which was dismissed as withdrawn to file writ petition in the High Court. The department was well aware that the writ petition was not maintainable against the order and that a reference could be made for which an application had to be filed before the Tribunal. Instead of filing an applica....