Custom, Excise & Service Tax Tribunal
M/S Carter Hydraulic Power Pvt. Ltd vs Commr. Of Central Excise, Kolkata Vii on 14 May, 2012
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL,
EAST REGIONAL BENCH : KOLKATA
SP-730/10
& Ex. Appeal No.636/10
Arising out of O/A No.43/Kol-VII/10 dated 5.5.10 passed by Commr. of Central Excise (Appeals), Kolkata.
For approval and signature:
SHRI S. K. GAULE, HONBLE TECHNICAL MEMBER
DR. D. M. MISRA, HONBLE JUDICIAL 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 Carter Hydraulic Power Pvt. Ltd.
APPELLANT(S)
VERSUS
Commr. of Central Excise, Kolkata VII
RESPONDENT (S)
APPEARANCE Shri M. K. Guha Neogi, Consulant for the Appellant (s) Shri S. Misra, Addl. Commr. (A.R.) for the Department CORAM:
SHRI S. K. GAULE, HONBLE TECHNICAL MEMBER DR. D. M. MISRA, HONBLE JUDICIAL MEMBER DATE OF HEARING & DECISION : 14. 05. 2012 ORDER NO.. Per Shri S. K. Gaule :
The applicant filed this application for waiver of predeposit of duty of Rs.34,79,874/-, interest and penalty of an equal amount under Section 11AC of the Central Excise Act, 1944.
2. The contention of the applicant is that this is a case of default for payment of duty under Rule 8 of the Central Excise Rules, 2002. The contention is that the ld. Commissioner (Appeals) has ordered for predeposit without granting any personal hearing and thereafter, he has dismissed the appeal for non-compliance with the provisions of Section 35F of the Central Excise Act, 1944. The contention is that they have already paid total duty and interest involved in this case. The contention is that once the duty is paid through Cenvat credit, they are not liable to pay any duty through PLA or cash. In support of their contention, they have placed reliance the Tribunals decision in the case of Baba Viswakarma Engg. Co. Pvt. Ltd. Vs. Commissioner of Central Excise, Gaziabad reported in 2012 (278) ELT 68 (Tri.-Del.).
3. After hearing both sides, we find the appeal itself can be disposed of at this stage. Therefore, after waiving the requirement of predeposit, we take up the appeal for disposal. We find that the ld. Commissioner (Appeals) has not decided the case on its merits. Therefore, we remand the case to the ld. Commissioner (Appeals) to decide the case on merits without insisting for any predeposit. Needless to say that a reasonable opportunity of hearing may be given to the appellants. Appeal is disposed of by way of remand. Stay petition is disposed of.
Dictated and pronounced in the open Court.
Sd/ Sd/
( DR. D. M. MISRA ) ( S.K.GAULE )
JUDICIAL MEMBER TECHNICAL MEMBER
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Ex.Appeal No.636/10