KANPUR CIGARETTES LIMITED Vs. CUSTOMS, EXCISE AND GOLD (CONTROL) APPELLATE TRIBUNAL, NEW DELHI AND ANOTHER

JUDGEMENT

(1.) PENDING consideration of the Appeal before the Customs Excise and Gold (Control) Appellate Tribunal, New Delhi, in the matter where the petitioner Kanpur Cigarettes Limited was seeking stay of the deposit of the Excise duty and had applied for the waiver which was partly denied, this petition has been filed to impugn the order of the Tribunal, aforesaid, dated 12.8.1996, Annexure -4 to the writ petition. Contention on behalf of the petitioner by its learned counsel Sri Bharat Ji Agarwal Senior Advocate assisted by Sri Surendra Posti, Advocate, is that from the balance -sheet the learned Tribunal has relied and held that the sale income was of Rs. 8,92,75,808/ - but the Tribunal did not take into account the excise duty which had already been paid and this resulted in denying the request for the waiver. It is submitted that the balance -sheet as was before the Tribunal records the income as Rs. 8,92,75,808/ - and the Excise duty paid before close of the year 31.3.1995 at Rs. 7,42,27,176/ -. If this amount of excise duty paid is taken into account, which it has not been, then the waiver application of the petitioner would need to be reconsidered and the demand has been made by a larger amount.

(2.) THE contention of learned counsel for the petitioner that the Tribunal had made an error and that this error is apparent on the face of the record is not correct. It is not correct for the simple reason that in the waiver application the petitioner as an assessee did not point out that of the excise duty which had been paid during the relevant year prior to 31.3.1995 was Rs. 7,42,27,176/ -. In the circumstances, strictly the Court cannot hold that the Tribunal was in error or there is any error apparent on the face of the record.

(3.) THERE is no occasion for the Court, in the circumstances, to correct the order of the Tribunal by a Writ of Certiorari. If the balance -sheet before this Court is the same balance -sheet which was before the Tribunal and the petitioner had not taken the pleadings to submit on the adjustment of excise duty, which had been paid, then, the petitioner has yet to contend before the Tribunal of an excise duty amounting to Rupees 7,42,27,176/ - having been paid already as certified by the balance -sheet. Thus, in so far as the waiver application of the petitioner is concerned, if the amount of Rs. 7,42,27,176/ - has not been taken into account on which aspect the petitioner has yet to submit, then, the petitioner may file an application drawing the Tribunal's attention to the fact that the amount of excise duty already paid and mentioned in the balance -sheet may be reckoned and the matter of waiver of the excise duty may be considered afresh.