Custom, Excise & Service Tax Tribunal
Rungta Sizing Works & Process vs Commissioner Of Central Excise, ... on 2 August, 2010
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT No. I APPLICATION Nos.E/Stay/1725 to 1727/09 APPEAL Nos.E/1135 to 1137/09 (Arising out of Order-in-Appeal No. SB/58 to 60/Th-I/09 dated 28.7.2009 passed by Commissioner of Central Excise (Appeals), Mumbai-I) For approval and signature: Hon'ble Mr. P.G. Chacko, Member (Judicial) and Hon'ble Mr. S.K. Gaule, 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 : Yes 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?
====================================================== Rungta Sizing Works & Process Appellant Vs. Commissioner of Central Excise, Thane-I Respondent Appearance: Shri H.G. Dharmadhikari, Advocate, for appellant Shri N.A. Sayyad, Authorised Representative (JDR), for respondent CORAM: Hon'ble Mr. P.G. Chacko, Member (Judicial) and Hon'ble Mr. S.K. Gaule, Member (Technical) Date of Hearing: 2.8.2010 Date of Decision: 2.8.2010 ORDER NO................................. Per: P.G. Chacko
After examining the records and hearing both sides, we find that the appeals are fit to be summarily disposed of. Accordingly, after dispensing with pre-deposit, we take up the appeals.
2. The appellant is engaged in the processing of manmade fabrics. During the period of dispute (9.7.2004 to 31.5.2005), they processed fabrics on their own as well as on job work basis. According to their modus operandi, the processing of manmade fabrics was undertaken on job work basis for the benefit principal manufacturers in one fortnight in a given month and, in the remaining fortnight of that month, they undertook similar activity as independent manufacturer. It is submitted that separate CENVAT accounts were maintained for the inputs used in the two categories of processing of manmade fabrics. The processed fabrics manufactured on job work basis were supplied to the customers (principal manufacturers) without payment of duty in terms of Notification 30/2004-CE dated 9.7.2004 and those manufactured independently were cleared on payment of duty as per Notification 29/2004-CE dated 9.7.2004. It is submitted that separate accounts were maintained for the inputs used in the two streams of manufacturing activity so as to enable correlation of inputs to the final product. CENVAT credit of the duty paid on inputs was utilised for payment of duty on the finished goods cleared from factory in terms of Notification 29/2004-CE ibid., while no such credit was taken at all in relation to the finished goods which were cleared on job work basis under Notification 30/2004-CE ibid. It is submitted by the learned counsel for the appellant that any such account could not be produced before the lower authorities who passed ex parte orders. It is submitted that the appellant could not appear before the adjudicating authority or the appellate authority in response to the notices of personal hearing. It is submitted that a request made to the Commissioner (Appeals) for adjournment of hearing was not granted. In the result, the orders came to be passed ex parte. The learned counsel has, therefore, prayed for a remand of the case to the original authority for the ends of justice. We have heard the learned JDR also, who reiterates the findings recorded by the original authority and the Commissioner (Appeals).
3. After considering the submissions, we find that the order-in-original and the order-in-appeal were passed against the appellant ex parte. The appellant, therefore, could not effectively plead their case before the adjudicating authority or before the appellate authority. It is the appellant's case that separate CENVAT accounts were maintained in respect of the inputs used in the two streams of manufacturing activity - processing of manmade fabrics on job work basis and as independent manufacturer. Given an opportunity, the appellant will be able to establish this fact before the adjudicating authority. We are inclined to enable the appellant to get such opportunity, but the appellant should diligently avail themselves of the same. Accordingly, after setting aside the orders of the lower authorities, we allow these appeals by way of remand with a direction to the original authority to pass fresh orders in de novo adjudication of the case in accordance with law, after giving the assessee a reasonable opportunity of adducing evidence and of being personally heard.
(Pronounced in Court) (S.K. Gaule) Member (Technical) (P.G. Chacko) Member (Judicial) tvu 1 4