AI Structured Summary
Not yet generated for this judgment
Judgment
Objection against the amendment application filed today, is taken on record.
Mr. Rakesh Singh Chauhan, learned Counsel for the Respondents says that as per the assurance given before the Court, the Respondents have not made any provisional attachment of the property belonging to the Petitioner but in the meantime the final orders have been passed, therefore, now the Petitioner has a statutory remedy of filing an appeal u/s 35-B of the Central Excise Act, 1944, where he can move an application for interim relief also, and as such the writ petition is not maintainable, though the amendment application for challenging the said order has also been moved.
Mr. Asit Srivastava, holding brief of Mr. Akhilesh Kalra, learned Counsel for the Petitioner, though does not dispute that against the final order appeal lies but says, that in view of the clarification issued by the Government of India with respect to the first proviso to Rule-8 of the Pan Masala Packing Machines (Capacity Determination and Collection of Duty), Rules, 2008, the appellate authority would not be in a position to take a different view and that this fact has been made clear by the adjudicating authority by circulating the aforesaid clarification.
After hearing the parties'' counsel, we are of the view that so far as the interpretation of Rule is concerned that can not be made by the Govt. of India in a manner so as to take away the discretion of the appellate authority or the adjudicating authority to apply its own mind for finding that how much duty should be charged in a given case under the rules.
We, therefore, being satisfied that the issue in question can more appropriately be looked into by the appellate authority, dispose of the writ petition with the direction that the Petitioner may file appeal u/s 35-B of the Central Excise Act, 1944 and also may file an application for stay and if any such application is filed, the same shall be considered forthwith without any delay in accordance with rules.
We further direct that the appellate authority shall consider the case of the Petitioner, with respect to the pleas regarding Rule-8 of the Pan Masala Packing Machines (Capacity Determination and Collection of Duty), Rules, 2008, independently, as per the rules and not merely on the clarification issued by the Govt, of India in this regard.
Writ petition is disposed of finally.