Custom, Excise & Service Tax Tribunal
4. Whether Order Is To Be Circulated To ... vs M/S Hero Pumps, Shri M.K. Patel on 21 November, 2012
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
WEST ZONAL BENCH AT AHMEDABAD
COURT - I
Appeal No.E/734-735/2012 (Application N0s.E/S/1133, 1134/2012)
Arising out of: OIA No.707 to 709/2012/COMMR(A)/RBT/RAJ, dt.24.07.2012
Passed by: Commissioner of Central Excise & Customs (Appeals), Rajkot
For approval and signature:
Mr.M.V. Ravindran, Honble Member (Judicial)
Mr. B.S.V. Murthy, Honble Member (Technical)
1. Whether Press Reporters may be allowed to see the No
Order for publication as per Rule 27 of the CESTAT
(Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 of the
CESTAT (Procedure) Rules, 1982 for publication
in any authoritative report or not?
3. Whether their Lordships wish to see the fair copy of Seen
the order?
4. Whether order is to be circulated to the Departmental Yes
authorities?
Appellant:
M/s Hero Pumps, Shri M.K. Patel
Respondent:
CCE Rajkot Represented by:
For Assessee: Shri P.V. Sheth, Adv. For Revenue: Shri Manoj Kutty, A.R. CORAM:
MR.M.V. RAVINDRAN, HONBLE MEMBER (JUDICIAL) MR. B.S.V. MURTHY, HONBLE MEMBER (TECHNICAL) Date of Hearing/Decision:21.11.12 ORDER No. /WZB/AHD/2012, dt.21.11.12 Per: M.V. Ravindran:
When these Stay Petitions are called, it was brought to our notice that first appellate authority has dismissed the appeal for non-compliance of pre-deposit ordered by him which was to the tune of 100% of duty liability and 50% of the penalty imposed on the main appellant as well as its partner.
2. After considering the submissions made by both sides, we find that the appeals themselves could be disposed of as the first appellate authority has not decided the issue on merit but has dismissed the same only for non-compliance.
3. Ld.Counsel submits that during the pendency of the issue, they have deposited an amount of Rs.2.50 lakhs. It is his submission that the issue involved in this case is regarding extending the benefit of Notification No.8/2003-CE to the product manufactured by the appellant i.e. submersible pump sets. It is his submission that the adjudicating authority has not accepted the contentions of the appellant only on the ground that the appellant could not produce BIS certificate for the said pumps and the notification specifically requires it so. It is his submission that the appellant has subsequently produced the BIS certificate. It is his submission that condition of notification does not specify that the product should be certified by BIS, but it should only conform to specification as laid in BIS.
4. Ld.D.R. would submit that the appellants production of certificate is of no avail as there was a circular of the Board which indicate upto 31.12.2006, the assessee could clear the goods from the factory premises which do not conform to the BIS standards but from 01.01.2007 the exemption will be available only to power driven pumps designed to handle water which conforms to BIS standards. Be that as it may, at this juncture, we are unable to go into the merits of the case as the first appellate authority has not decided the issue on merit. The dispute in appeals is only on the ground of non-compliance. In our considered view, since the issue is of interpretation of notification involved, the amount of Rs.2.50 lakhs deposited by the main appellant during the pendency of the proceedings should be enough deposit to hear and dispose the appeal.
5. Accordingly, we set aside the impugned order and remand the matter back to first appellate authority to reconsider the appeal without insisting for further deposit from the appellants.
6. The impugned order is set aside and the appeals are remanded to first appellate authority to consider the issue on merit after following the principles of natural justice.
(Dictated & Pronounced in Court)
(B.S.V. Murthy) (M.V. Ravindran)
Member (Technical) Member (Judicial)
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