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2017 DIGILAW 784 (RAJ)

Unistar Polymers Pvt. Ltd. v. Union Of India

2017-03-22

K.S.JHAVERI, VIJAY KUMAR VYAS

body2017
JUDGMENT ORDER K.S. Jhaveri, A.C.J. - By way of this reference, the petitioner has challenged the judgment and order of the Tribunal whereby, the Tribunal has dismissed the appeal preferred by the petitioner. 2. Learned Counsel for the petitioner has taken us to the order of the Tribunal where the Tribunal while considering the matter has partially allowed some of the issues but has rejected the contentions specifically raised in regard to SSI Unit which was wrongly exempted and cancelled by the authority. 3. Learned Counsel for the petitioner has further taken us to the order dated 17-9-2008 whereby, this Court has framed the following substantial questions of law :- "(i) Whether in the facts and circumstances of the case the Learned Tribunal being the last fact finding body was right in law in overlooking the material piece of evidences and defence like jurisdiction, reasons for discrepancy in physical stock, SSI Exemption, etc., on account of non-manufacture but trading of the goods and clearance of waste instead of finished goods, making the order ab initio void, perverse, arbitrary and violative of the principles of natural justice? (ii) Whether in the facts and circumstances of the case, the Learned Tribunal was right in law in denying the benefit of SSI Exemption on the ground that clearances in the preceding financial year has exceeded Rs. 3 crores by including trading clearances on which Central Excise duty is not applicable, thereby making the order perverse, arbitrary and illegal?" 4. Learned Counsel for the petitioner has also taken us to the show cause notice and reply thereto contending that specific contention was raised regarding the status of the petitioner on small scale industry which has not been considered by the Tribunal though specific contention was raised before the Tribunal. 5. Learned Counsel for the petitioner has further contended that the penalty and other issues which were decided are mainly depending upon the status of the present petitioner and if it is granted, the corresponding taxation and penalty will be followed. 6. Mr. Sandeep Pathak, Learned Counsel for the respondent has supported the order of the Tribunal and has contended that no such contention was raised before the Tribunal and, therefore, it will be open for him for review of the appropriate proceedings before the Tribunal. 7. 6. Mr. Sandeep Pathak, Learned Counsel for the respondent has supported the order of the Tribunal and has contended that no such contention was raised before the Tribunal and, therefore, it will be open for him for review of the appropriate proceedings before the Tribunal. 7. In the facts and circumstances of the case however, it will not be proper to relegate the petitioner for review after almost 8 1 /2 years. 8. In that view of the matter, we have considered Issue No. (ii) and we direct the Tribunal to consider only the status of the petitioner regarding their exemption under SSI Unit and if the contention of the petitioner is accepted, the corresponding effect will be given only to the extent of the SSI Unit. We are not interfering with the quantum and finding which has been decided by the Tribunal. Only if there is a sSi Unit, the corresponding effect will be given by the Tribunal. 9. The reference is allowed to the above extent. 10. Matter remanded.