Custom, Excise & Service Tax Tribunal
Hindustan Coca Cola Beverages Pvt. Ltd vs Commissioner Of Central Excise (St) on 13 August, 2013
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
SOUTH ZONAL BENCH AT CHENNAI
Appeal No. E/S/40469/13 & E/40657/13
[Arising out of Order-in-Appeal No.1/2013(M-IV) dt. 8.1.2013 passed by the Commissioner of Customs, Central Excise & Service Tax (Appeals), Chennai-I]
For approval and signature:
Honble Shri MATHEW JOHN, 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 the Member wishes to see the fair copy of
the Order? :
4. Whether Order is to be circulated to the Departmental
Authorities? :
Hindustan Coca Cola Beverages Pvt. Ltd. Appellant
Versus
Commissioner of Central Excise (ST),
Chennai-I
Respondent
Appearance:
Shri G. Natarajan, Advocate For the Appellant Shri P. Arul, Superintendent (AR) For the Respondent CORAM:
Honble Shri Mathew John, Technical Member Date of hearing : 13.8.2013 Date of decision : 13.8.2013 FINAL ORDER No.
1. After hearing both sides, I am of the view that this appeal needs to be remanded for the reasons being recorded in this order. So after waiving the requirement of pre-deposit under section 35F, I take up the appeal itself for hearing and decision.
2. The appellant has filed an appeal filed against order of Commissioner (Appeals) rejecting the appeal before him for the reason that the amount ordered to be pre-deposited was not deposited by the appellant.
3. Ld. Advocate for the appellant submits that the issue involved in the appeal is Cenvat credit on the bottles used for marketing soft drinks which get destroyed in the manufacturing process or transport of the goods. The issue is already decided in their favour for an earlier period by the Commissioner (Appeals). He also submits that for the subsequent period also, the Commissioner (Appeals) has passed orders dropping such proposal. The issue is also decided in their favour by the Tribunal also in the case of CCE Allahabad Vs Burnet Pharmaceutical Pvt. Ltd. 2009 (245) ELT 394 (Tri.-Cal.). Though this decision was pointed in the stay petition before the Commissioner (Appeal), the Commissioner (Appeals) did not consider this aspect and ordered predeposit of the entire amount. He also pointed out that on the date fixed for hearing stay petition, the appellant had asked for adjournment so that he could produce the orders for earlier period but the same was not granted. His prayer is that since the issue is already decided in their favor by the Tribunal the order for pre-deposit is unwarranted and the issue should be decided on merits without any predeposit.
4. Opposing the prayer, Ld. AR for Revenue relies on the decision of Hon. High court of Madras in Aluminium & Glazing Vs CCE 2013-TIOL-168-HC-MAD-ST and a few other decisions and argues that once order for pre-deposit is made, it is to be complied with.
5. Considered arguments on both sides. I find that Commissioner (Appeals) has asked for pre-deposit on an issue which is already decided in favour of the assessee. In such a situation, Commissioner (Appeals) should have exercised the discretion vested upon him under section 35F of the Central Excise Act more judiciously. In such cases, litigants have no option other than to agitate the matter at higher levels which is being done in the present proceeding. I am of the view that this is a case where there was no justification to call for any pre-deposit for hearing the appeal before Commissioner (Appeals). It is ordered accordingly and the matter is remitted to the Commissioner (Appeals) after setting aside the impugned order for deciding the matter on merits after complying with principles of natural justice but without insisting of pre-deposit under section 35F.
6. The stay petition and appeal are disposed of.
(Dictated and pronounced in open court) (MATHEW JOHN) TECHNICAL MEMBER gs 5