CETEX PETROCHEMICALS Vs. COMMISSIONER OF CENTRAL EXCISE

JUDGEMENT

(1.) FOR the purpose of hearing the appeal, the appellant is required to pre -deposit an amount of Rs. 2,32,039/ - and a penalty of an equal amount. The question in the appeal is pertaining to place of removal and as to whether it is factory premises or buyers premises as alleged in the Show Cause Notice. The Commissioner has confirmed duty on the excess freight charged by the appellant. However, Counsel submits that there is no mention in the Show Cause Notice with regard to the collection of excess freight and that the order is beyond the Show Cause Notice. He submitted that the issue pertaining to place of removal has been decided by the Apex Court judgment in the cases of Baroda Electric Meters Ltd. v. CCE reported in 1997 (94) E.L.T. 13 (S.C.) and Indian Oxygen Ltd. v. CCE reported in 1988 (36) E.L.T. 723 (S.C.) He submits that on this point the Commissioner has accepted their plea.

(2.) THE Ld. DR submits that the appellants have collected extra freight and insurance and had not been added in the assessable value. Hence, the Commissioner after due consideration confirmed duty and levied the penalty.

(3.) ON a careful consideration, we notice that prima facie the appellants have shown that the amount had not been computed in the Show Cause Notice. On this ground, the appellants are entitled to seek waiver of pre -deposit of the amount in question and for stay of the recovery till the disposal of the appeal. Stay application is thus allowed. As stay has been granted in the matter, the appeal is required to be heard within six months in terms of amended Section 35F of the Act. Hence, the appeal to come up for out of turn hearing on 6 -4 -2004. Stay application allowed for final hearing of the appeal.