SSMftlS SPVfH Wll^Li: tS^SiW "^f t09>^ IN THE HI6H COURT OF CHHATrES6ARH AT BILASPUR WRIT PETITEON^O. 4 11 ^ /2007 PETTTEONER A^.-' ..-•^.. Ct---'' ..^•"^/9- ey" M/s Uniworth Textiles Ltd. 923-945, Urla Industrial Area,; Sector D, P.0. Sarora, Raipur (C.G.) Through its Manager (Cofflmercial) VERSUS RESPONDENTS :- ^ ^^ •ti<.%^ ^' 1] Unionoflndia, Through the Secretary, MinistiyofFinance, ; Department ofRevenue, New Delhi. 2] Commissioner of Central Excise (Appeals) Central Excise Building, Dhamtari Road, Tikarapara, Raipur (CG). ,, p^ h^^^ff^ ^*^ n^^^^^s: Wr •U^S^7-. WRIT PETETCON UNbER ARTECLE (Z2S\ OF THf CONSTCTUTEON OF INblA FOR ISSUANCE 0^^e~ APPROPRIATE WRITFS1 ORDERrSI. DIRECTCONrSI TO 00 JUSTICE IN THE MATTER w AFt^ ^-^ PETITiONER RESPONDENTS HIGH COURT OF CHHATTISGARH: BILASPUR WRIT PETITION (T) N0. 41 15 OF 2007 iWs. Uniworth Textiles Ltd. VersiK Union of India & Another (Writ Petition under Article 227 of the Constitution of India) Single Bench : Hon'ble Shri Satish K. Agniholri, J. Present:- Shri Rupesh Kumar with Shri P.K.Tulsiyan, Advocates fbr the petitioner. Shri Maneesh Sharma, Advocate for the respondents. ORDER (Passed on this 22"a day of November, 2011) 1. Learned counsel appearing for the petUioner submits that tfae Commissioner of Central Excise (Appeals), while considering the case ofthe petitioner for exemption for pre-deposit in an appeal filed against the order dated 29.11.2006, passed by the Additionat Commissioner, Central Excis®,Raipur, has not conadered the tesue asto whether new and different facts and circumstances have arisen to take a different view from the view taken eariier by the Commissioner of Central Excise (Appeats) in the identical facts and circumstances, wherein, exemption from Dre-deDosit under the Drovisions of Section 3N: of the Centnal Excise Act, 1944, was granted. Thus, leamed counsel submrts that m view of foregoing, the matter may be remanded back to the Commissioner of Central Excise (Appeals) to reconsider the issue and pass the detailed order, after having considered exemption granted eariier in the similarfacts ofthe case. 2. Shri Maneesh Sharma, learned counsel appearing for the respendents submits that it may not makeany djfference, as the Commissioner of Central Excise (Appeals) has already considered each and every aspect ofthe matter. 3. It is p^ited out by the leamed counsel for the petitioner that the \. Supreme Court !n several decisions has laid down that the eariier facts may also be considered while deciding the applicalion for grant of ^ 2 ^95 exemption underSection35FoftheCentral ExciseAct, 1944. tnsutyort , of his contention, the petitioner reties on the decision ofthe Supreme Court in Polar InclusMes Ltd. v. Cofrmwsstoner of Central Exdw, t Meeruf and Mehsana Dist. Co-op. Mttk P.U. Ltd. v. Untonoflndi^. 4. Heard learned counsel appearing for the parties, perused the pleadings and documents on record. On perusal of the impugned order dated 31.05.2007, it is found that in Para-5, the Gommissioner proceeded as under: "5. On a prima facte conaderaVon of the merite of the case and ffie sutjnwssions macfe tn ffse Appeal PettSon, 1 have atso perused the Order-ln-Appeal No.SIAWR' i/2006 dated 07.06.2006 passecfiy ffie ComirSs&oner (Appeals-t), Central Exdse Raipur refemect to by ffie Appeilant in the preceding para anct on ascatatning furffier detatls, !t has emerged ftaf ffie aforesafd deciston of Convnissloner (Appeats) has been challenged by ffie Department vide an Appeal filed fte/ore the Hon'ble CESTAT, New Delhl on the basis of an AuthorisaSon granted un(tor SecSon 3S-B(2) of the Central Ewise Act, 1944 from Commisstonerate of Central Excise Sle F.No.HI(20)ARC/Comrm1AV48/2006 dated 03.08.200e". 5. Thereafler, after quoting stand of the department, K has nowhere •¥:• mentioned as what decision was taken by the CESTAT at N®wDelhi against the order in question. Even, thereafter, the petitioner has not recorded any further reasons for distinguishing the fact of the instant case, as contention of the petitioner, as recorded in the impugned order were as under: "3.9. In subsequent year of 1999-2000, hcwwer, sucha situatton iSd not arise for consictetaSon and. thwefoie, the loss for ffie year encted 31.03.2000 shafply came ctown Irom 44.5 Crores to 4.18 Croress onfy. tt wotild, ffius, be seen ffiat ffie huge loss ofabout Rs.40 Civres or so accniecf during 98-99 was made good by the '1999(114) E.L.T. 783 (S.C.) 2 2003 (154) E.L.T. 347 (S.C.) «i^'"^., 3 ^ Company by expaVng Ifs Flnished Goocfs to tfiat extent during subsequent year. The 'Pnce Emston' system adoptec? tiy ffie Company for ffie year 1998-99 is an appraved cwnon of accounttng system In company matters. . 3.10. 8e that as it may, the ovorall poslSon is that there has been a conSnued loss of atxmt Rs.3 to 4 Crores ewery year to ffie company chirtng ffie 4 precsdfng financial years. n is most humbty and respeclfuSy fw w submmed that even tlurlng ffie current flnanclal year 2006-2007 ffie Company Is not Shely to make any pmfif. !n view of foregoing, the impugnsd order dated 31.05.2007 (Ann®<ure P-2) is set aside and the matter is remitted back to the Commissioner of Cerrtra! Excise (Appeals) to reconsider the case on the facts ofthe case and on hearing bpth the parties, pass the order, in accordance with law, on its own merit. astielc Accordingly, thewrit petition is allowed tothe above-extent. Sd/- -,, Satish K.Agnihotri Judge