Swastik Fragrances vs Commissioner (Appeals) of Cus. and C. Ex.

This writ petition has been filed against the order dated 24-2-2004 (Annex 4), passed by the Commissioner (Appeals) on an application of waiver of pre-deposit condition directing the petitioner to deposit 10% of the duty demanded vide order dated 20-3-2002.

Shri Bharat Ji Agrawal, learned Senior Counsel appearing for the petitioner has submitted that appeal raises the question as to whether the value of the excisable goods include the amount of duty of excise, sales tax and other taxes, if any, and the provisions of Section 4(1)(d) of the Central Excise Act provides that such an amount cannot be added in the value of goods. However, this aspect has not been considered at all while deciding the application of waiver of pre-deposit condition by the appellate authority.

Shri Bharat Ji Agrawal has placed a very heavy reliance on a judgment of this Court in I.T. v. Commissioner Appeals (Custom & Central Excise) in Writ Petition No. 1219 of 2003, decided on 23-10-2003, wherein this Court has placed reliance that if the appeal raises arguable questions, the appellate authority should grant complete exemption.

Shri G.P. Gupta, learned Senior Counsel appearing for the Revenue could not explain any reason as to why the provision of Section 4(1)(d) has not been taken into account by the appellate authority.

In view of the above, petition succeeds and is allowed and the impugned order dated 27-2-2004 is set aside, and the appellate authority is directed to decide the appeal expeditiously if the petitioner furnishes the security to the satisfaction of the appellate authority other than the cash or bank guarantee.