Custom, Excise & Service Tax Tribunal
M/S. Southern Structurals Ltd vs Cce, Chennai Iv on 28 September, 2016
IN THE CUSTOMS, EXCISE & SERVICE TAX
APPELLATE TRIBUNAL
SOUTH ZONAL BENCH, CHENNAI
E/1095/2005
(Arising out of Order-in-Original No.7/2005 dated 28.9.2005 passed by the Commissioner of Central Excise, Chennai IV)
M/s. Southern Structurals Ltd. Appellant
Vs.
CCE, Chennai IV Respondent
Appearance Shri P.C. Anand, Chartered Accountant for the Appellant Shri B. Balamurugan, AC (AR) for the Respondent CORAM Honble Shri D.N. Panda, Judicial Member Honble Shri Madhu Mohan Damodhar, Technical Member Date of Hearing / Decision: 28.09.2016 Final Order No. 41671 / 2016 Per D.N. Panda It is submitted on behalf of the appellant that railways placed order for 106 wagons to be manufactured by the appellant. Appellant manufactured 105 wagons and cleared to railways and in between, an escalated price was payable to the appellant for which necessary bills have been raised. That was not finalized because the 106th wagon was not cleared.
2. During this stage, Revenues contention is that the escalation charge shall be liable to duty.
3. Appellant further says that due to financial sickness the public sector undertaking of the State Government has undergone industrial sickness. If a last opportunity is granted to reconcile the payment and also appraise the material facts with evidence to the adjudicating authority, there may not arise further dispute but would serve useful purpose of law.
4. Revenue on the other hand says that the appellant having realized the escalated price, that is dutiable and undelivered wagon has nothing to do. Therefore, no useful purpose would be served even if remand is made.
5. Heard both sides and perused the records.
6. We do not prejudge the character and nature of the escalated price if any received whether relates to the duty element. Unless a proper reconciliation is made and conditions of contract are examined, which is not done in the adjudication order, the real character of the receipt will remain in dark. Therefore, to grant an opportunity to the appellant for such exercise, the matter is remanded to the Adjudicating Authority with time frame to complete the re-adjudication only in respect of the controversy as above.
7. Appellant is directed to make an application to the adjudicating authority within three months of receipt of this order to fix a date of hearing and without seeking any adjournment shall provide the reconciliation statement to him to reduce the litigation at the grass root. The authority without any compelling reason shall not grant any adjournment. He shall examine thoroughly the contract between the parties and scrutinize the reconciliation and recording evidence as well as pleadings if any both on law and fact, shall pass a reasoned and speaking order within six months from the last date of hearing.
8. In the result, appeal is remanded in the manner indicated above.
(Dictated and pronounced in open court)
(MADHU MOHAN DAMODHAR) (D.N. PANDA)
Technical Member Judicial Member
Rex
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