Custom, Excise & Service Tax Tribunal
M/S Telco Construction Equipment Co. ... vs Commissioner Of Central Excise, Jsr on 15 January, 2014
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL,
EAST REGIONAL BENCH : KOLKATA
SP-1140/12
& Ex. Appeal No.685/12
Arising out of O/A No.173/JSR/2012 dated 04.09.2012 passed by Commr. of Central Excise (Appeals), Ranchi.
For approval and signature:
DR. D. M. MISRA, HONBLE JUDICIAL MEMBER
DR. I. P. LAL, HONBLE TECHNICAL MEMBER
1. Whether Press Reporters may be allowed to see
the 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 His Lordship wishes to see the fair copy
of the Order? :
4. Whether Order is to be circulated to the Departmental
Authorities? :
M/s Telco Construction Equipment Co. Ltd.
APPELLANT(S)
VERSUS
Commissioner of Central Excise, Jsr
RESPONDENT (S)
APPEARANCE Shri Thomas Vellapany, Advocate for the Appellant (s) Shri Anirudha Roy, Supdt. (A.R.) for the Department CORAM:
DR. D. M. MISRA, HONBLE JUDICIAL MEMBER DR. I. P. LAL, HONBLE TECHNICAL MEMBER DATE OF HEARING & PRONOUNCEMENT : 15. 01. 2014 ORDER NO.FO/A/75015/2014 Per Dr. D. M. Misra :
This is an application for waiver of predeposit of penalty of Rs.10.17 lakhs imposed under Rule 13 (2) of Central Excise Rules, 2002 read with Section 11AC of the Central Excise Act, 1944.
2. At the outset, the ld.Advocate appearing for the Applicant, has submitted that the appeal has not been decided on merit by the ld. Commissioner (Appeals), but dismissed for non-compliance with the provisions of Section 35F of the Central Excise Act, 1944. He submits that the cenvat credit of Rs.10.17 lakhs had been allowed by the adjudicating authority, however, penalty of Rs.10.17 lakhs has been imposed on the Applicant along with interest. It is his submission that the ld. Commissioner (Appeals) has stayed the recovery of the said penalty amount by his Order dated 29.03.2012 and there was no direction for any predeposit, but the appeal was dismissed on 04.09.2012 for failure to predeposit of the directed amount within one month. He submits that the aforesaid orders are contradictory.
3. The ld. A.R. for the Department, has fairly accepted that the ld. Commissioner (Appeals) has not decided the issue on merit, but dismissed their appeal for non-compliance with the provisions of Section 35F of the Central Excise Act, 1944, hence, he has no objection for remanding the case for fresh decision to the ld.Commissioner (Appeals).
4. After hearing both sides for some time, we find that the appeal itself can be disposed of at this stage. Consequently, after waiving the requirement of predeposit of dues adjudged and with the consent of both sides, the appeal is taken up for final disposal.
5. Heard both sides and perused the records. We find that the ld. Commissioner (Appeals) has not decided the issue on merit, but dismissed their appeal for default in making predeposit as directed by him. The order of the ld.Commissioner (Appeals) dismissing the appeal is devoid of merit and accordingly, the same is set aside. Since the ld.Commissioner (Appeals) has not decided the issue on merit, but dismissed for failure to predeposit the directed amount (which he has never asked to deposit) under the provisions of Section 35F of the Central Excise Act, 1944, we direct the ld. Commissioner (Appeals) to decide the issue on merit, without insisting any predeposit from the Appellant. Accordingly, we set aside the impugned order and remit the matter to the ld.Commissioner (Appeals) for re-consideration of the case on merit. Needless to mention, a reasonable opportunity of hearing be granted to the Appellant to present their case. All issues are kept open and both sides are at liberty to produce evidences in their support.
6. The appeal is allowed by way of remand. Stay petition is disposed off.
Dictated and pronounced in the open Court.
Sd/ Sd/
(DR. I.P.LAL) (DR. D.M.MISRA)
MEMBER (TECHNICAL) MEMBER (JUDICIAL)
mm
2
Ex. Appeal No.685/12