Custom, Excise & Service Tax Tribunal
Gemini Instratech Pvt. Ltd vs Commissioner Of Central Excise, Nashik on 16 March, 2012
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT No. I APPLICATION No. E/Stay/1038/11-Mum APPEAL No. E/911/11-Mum (Arising out of Order-in-Appeal No. AKP/NSK/55/2011 dated 9.3.2011 passed by Commissioner of Central Excise & Customs (Appeals), Nashik) 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?
====================================================== Gemini Instratech Pvt. Ltd. Appellant Vs. Commissioner of Central Excise, Nashik Respondent Appearance: Shri Bharat Raichandani, Advocate, for appellant Shri A.K. Prabhakar, Superintendent (AR), for respondent CORAM: Honble Mr. S.S. Kang, Vice President and Honble Mr. Sahab Singh, Member (Technical) Date of Hearing: 16.3.2012 Date of Decision: 16.3.2012 ORDER NO Per: S.S. Kang Heard both sides.
2. The applicant filed this application for waiver of pre-deposit of duty of Rs.6,48,503/-, interest and penalty. The applicants are engaged in the manufacture of parts of windmills including doors of windmills and clearing the goods at nil rate of duty by availing the benefit of Notification 6/2006. The benefit of Notification is denied in respect of the windmill doors on the ground that the same are not part of wind-operated generating system.
3. The adjudicating authority confirmed the demand. The applicant filed appeal before the Commissioner (Appeals) and the same was dismissed as time barred vide the impugned order. The applicant had already paid an amount of Rs.41,473/- and the same has been appropriated by the adjudicating authority.
4. The contention of the applicant is that the applicant received the adjudication order dated 15.10.2010 on 29.11.2010 and the appeal was filed within the normal period of limitation. The matter was argued on merit before the Commissioner (Appeals) and the Commissioner (Appeals) without putting the notice to the applicant that the appeal is time barred dismissed the appeal by holding that there is a delay of 30 days in filing the appeal.
5. The contention is that as per the provisions of Section 35 of the Central Excise Act, the appeal is to be filed within 60 days from the date of communication of the adjudication order and the Commissioner (Appeals) can condone a further delay of 30 days on showing sufficient cause for not filing the appeal within the normal period. In this case as the Commissioner (Appeals) held that there is a delay of 30 days, the same is condonable by the Commissioner (Appeals). In these circumstances, the contention is that the matter be remanded to the Commissioner (Appeals) to decide afresh the issue on limitation.
6. The Revenue submitted that the applicant had not filed any application for condonation of delay. The Commissioner (Appeals) has taken into consideration that the adjudication order was sent through speed post on 21.10.2010 and the same has been received by the receiving post office on 30.10.2010 and received by the applicant on the same day as per the receipted acknowledgment slip, hence the impugned order is rightly passed.
7. We find that the appeal filed by the applicant was dismissed as time barred and the Commissioner (Appeals) held that there is a delay of 30 days in filing the appeal. As per the provisions of Section 35 of the Central Excise Act, the Commissioner (Appeals) can condone the delay of 30 days on showing sufficient cause for not filing the appeal within the normal period.
8. Further, we find that in respect of the earlier demands which were confirmed on the same ground by denying the benefit of the same Notification, the Tribunal directed the applicant to deposit an amount of approximately 8% of the confirmed demand. Keeping in view the facts and circumstances of the case as we find it is not a fit case for total waiver of duty, the applicants are directed to deposit an amount of Rs.60,000/-, in addition to the amount already deposited, within a period of six weeks. On deposit of the above mentioned amount, the pre-deposit of the remaining dues is waived and recovery of the same is stayed.
9. With the consent of the parties, the appeal is taken up for hearing as the Commissioner (Appeals) has dismissed the appeal as time barred.
10. The Commissioner (Appeals) in the impugned order held that there is a delay of 30 days in filing the appeal. As we find that the Commissioner (Appeals) can condone the delay of 30 days on showing sufficient cause, therefore the impugned order is set aside and the matter is remanded to the Commissioner (Appeals) to decide afresh the issue of limitation, on showing the deposit of the above mentioned amount, and after affording an opportunity of hearing to the appellant. The appellant undertakes to file an application for condonation of delay before the Commissioner (Appeals). The appeal is disposed of by way of remand.
(Dictated in Court) (Sahab Singh) Member (Technical) (S.S. Kang) Vice President tvu 1 5