Custom, Excise & Service Tax Tribunal
Jamal Bakery vs Commissioner Of Central Excise, ... on 18 October, 2011
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT No. I APPLICATION No. E/S/1905/10 APPEAL No. E/1758/10 (Arising out of Order-in-Appeal No. YDB/417/M-II/2010 dated 28.7.2010 passed by Commissioner of Central Excise (Appeals), Mumbai-II) For approval and signature: Honble Mr. S.S. Kang, Vice President and Honble Mr. Sahab Singh, Member (Technical) ======================================================
1. Whether Press Reporters may be allowed to see : No 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 Their Lordships wish to see the fair copy : Seen of the Order?
4. Whether Order is to be circulated to the Departmental : Yes authorities?
====================================================== Jamal Bakery Appellant Vs. Commissioner of Central Excise, Mumbai-II Respondent Appearance:
Shri M.H. Patil, Advocate, for appellant Shri V.K. Agarwal, Additional Commissioner (AR), for respondent CORAM:
Honble Mr. S.S. Kang, Vice President and Honble Mr. Sahab Singh, Member (Technical) Date of Hearing: 18.10.2011 Date of Decision: 18.10.2011 ORDER NO Per: S.S. Kang Heard both sides.
2. The applicant filed this application for waiver of pre-deposit of duty of Rs.1,76,127/-, interest and penalty of equal amount. The appeal filed by the applicant is dismissed by the Commissioner (Appeals) for non-compliance with the conditions of the stay order.
3. The contention of the applicant is that they were manufacturing the goods cakes and pastries under the brand name Kwality since 1971 and the name of the unit was also Kwality Bakery which was subsequently changed to Jamal Bakery. The contention is that as the applicant was clearing the goods under the brand name of their unit, i.e. Kwality, therefore entitled for the benefit of Small Scale Exemption Notification.
4. The contention of the Revenue is that the applicant is not entitled for the benefit of Small Scale Exemption Notification No.8/2003-CE as the applicant is clearing the goods under the brand name of Kwality which does not belong to the applicant and the same belongs to others.
5. The applicant also pleaded financial hardship on the ground that the applicant is a small unit and deposit of the above amount will cause undue hardship.
6. As the applicant is clearing the goods under the brand name of Kwality, therefore prima facie we find that it is not a case for total waiver of duty. Keeping in view the facts and circumstances of the case and the financial hardship as pleaded, the applicant is directed to deposit an amount of Rs.90,000/- (Rupees ninety thousand only) within a period of six weeks. On deposit of the above mentioned amount, pre-deposit of the remaining amount of interest and penalty is waived and recovery of the same is stayed for hearing of the appeal.
7. As noted above, the Commissioner (Appeals) dismissed the appeal for non-compliance with the provisions of Section 35F of the Central Excise 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.90,000/- 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 tvu 1 3