Custom, Excise & Service Tax Tribunal
M/S. Sanvijay Rolling & Engineering ... vs Commissioner Of Central Excise, Nagpur on 28 March, 2012
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT NO. Application No. E/S/2097/2011-Mum. In Appeal No. E/1806/2011-Mum. (Arising out of Order-in-Appeal No. AGS/388.NGP/2011 dated 28/9/2011 passed by the Commissioner of (Appeals) Central Excise & Customs, Nagpur. ) For approval and signature: Honble Mr. S.S. Kang, Vice President Honble Mr. Sahab Singh, Member (Technical) ============================================================
1. Whether Press Reporters may be allowed to see :
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CESTAT (Procedure) Rules, 1982?
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in any authoritative report or not?
3. Whether Their Lordships wish to see the fair copy :
of the Order?
4. Whether Order is to be circulated to the Departmental :
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============================================================= M/s. Sanvijay Rolling & Engineering Limited :
Appellant VS Commissioner of Central Excise, Nagpur. :
Respondent Appearance Shri Narendra Dave, C.A for Appellant Shri H.B. Negi, Additional Commissioner (A.R) for respondent CORAM:
Mr. S.S. Kang, Vice President
Mr. Sahab Singh, Member (Technical)
Date of hearing : 28/03/2012
Date of decision : 28/03/2012
ORDER NO.
Per : S.S. Kang
Heard both sides.
2. Applicant filed this application for waiver of pre-deposit of duty of Rs.3,00,431/-, interest and penalty of the equal amount.
3. Brief facts of the case are that the appellant engaged in the manufacture of Angles, Channels, Joists, Flat Bars Rods etc. of Iron & Steel falling under Chapter Heading 72 of the Central Excise Tariff 1985. The applicants are also undertaking job work of M/s. Steel Authority of India and M/s. Tata Steel Ltd. During the goods manufactured on job work basis the waste and scrap generated is retained and sold by the applicant. The case of the Revenue is that job charges are suppressed to the extent price of waste and scrap retained by the applicant. Applicant relied upon the decision of the Tribunal in the case of P.R. Rolling Mills Pvt. Ltd. Vs. Commissioner of Central Excise Tirupathi reported in 2010 (249) ELT 232 (Tri. Bang.) and in the case of International Auto Limited Vs. Commissioner of Central Excise, Bihar reported in 2005 (183) ELT 239 (S.C.) in support of their claim.
4. The Revenue relied upon the decision of Supreme Court in the case of General Engineering Works Vs. Commissioner of Central Excise reported in 2007 (212) ELT 295 (S.C.) to submit that as job charges are suppressed to the extent price of the waste and scrap retained by the applicant. Therefore, the demand is rightly made. Revenue also relied upon the stay order dt. 15/11/2011 in Appeal Nos. E/1695,1696, 1700 & 1701/2010 in applicants own case whereby the Tribunal directed the applicants to deposit the amount of duty relating to the normal period of limitation.
5. We find that in the present case demand is for the normal period and in view of the fact that the applicants are retaining the waste and scrap generated during the manufacture of goods on job work basis and the job charges are suppressed to the extent price therefore it is not a case for waiver of duty. Further we find that in applicants own case the Tribunal vide Stay Order dt. 15.11.2011 directed the applicant to deposit the duty for the normal period which was confirmed on the same ground. In view of the above, the applicant is directed to deposit an amount of Rs. 3,00,431/- within a period of four weeks. On deposit of the above mentioned amount, the pre-deposit of remaining amount, interest and penalty is waived and recovery of the same is stayed for hearing of the appeals.
6. Further, we find that the Commissioner (Appeals) dismissed the appeal for non-compliance with the provisions of Section 35F of the Central Act without going into the merits of the appeal . In these circumstances, the impugned order is set aside and the matter is remanded to the Commissioner (Appeals) to decide the appeal on merits, on showing the deposit of the above mentioned amount of Rs.3,00,431/- and after affording an opportunity of hearing to the appellant. The appeal is disposed of by way of remand.
(Dictated in court) (Sahab Singh) Member (Technical) (S.S. Kang) Vice President Sm ??
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