Custom, Excise & Service Tax Tribunal
M/S. Balasore Alloys Ltd vs Commissioner Of Central Excise, ... on 24 May, 2010
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE
TRIBUNAL, KOLKATA
EASTERN ZONAL BENCH: KOLKATA
Stay Petition No.SP-869/09
&
Appeal No.S.T.269/09
(Arising out of Order-in-Appeal No.68/ST/BBSR-I/2009 dated 17.08.209 passed by the Commissioner(Appeals) of Central Excise, Customs & Service Tax, Bhubaneswar.)
FOR APPROVAL AND SIGNATURE
HONBLE SHRI S.S. KANG, VICE PRESIDENT
HONBLE SHRI M.VEERAIYAN, MEMBER(TECHNICAL)
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
Authorative report or not?
3. Whether Their Lordship wishes to see the fair copy
of the Order?
4. Whether Order is to be circulated to the Departmental
Authorities?
M/s. Balasore Alloys Ltd.
Applicant (s)/Appellant (s)
Vs.
Commissioner of Central Excise, Customs & Service Tax, BBSR-I
Respondent (s)
Appearance:
Shri Arijit Chakraborty, Advocate for the Appellant (s) Shri M.B. Bal, Authorised Representative(JDR) for the Respondent (s) CORAM:
Honble Shri S.S.Kang, Vice President Honble Shri M.Veeraiyan, Member(Technical) Date of Hearing:- 24.05.2010 Date of Pronouncement :- 24.05.2010 ORDER NO.
Per Shri S.S.Kang.
1. Heard both sides.
2. Applicant filed this Application for waiver of pre-deposit of duty of Rs.9,08,273/-(Rupees Nine Lakh Eight Thousand Two Hundred and Seventy Three only) and penalty. The demand was confirmed after denying the CENVAT Credit.
3. Commissioner(Appeals) in the impugned order dismissed the Appeal as time barred as the same has been filed even after 30 days condonable period by the Commissioner(Appeals) as provided under Section 35 of Central Excise Act.
4. Contention of Applicant is that the Show Cause Notice was issued by invoking the CENVAT Credit Rules as well as the provisions of Section 73 of the Finance Act in respect of demand and in respect of imposition of penalty provisions of Section 11AC of Central Excise Act as well as provisions of Section 78 of the Finance Act was invoked. Contention is that as the provisions of Central Excise Act, CENVAT Credit Rules and of Finance Act were invoked in the Show Cause Notice therefore Appellant was under the impression that it is a demand of Service Tax under the Finance Act, 1994 and as per the provisions of Section 85 of the Finance Act the limitation for filing Appeal is three months and the Commissioner(Appeals) can condone further delay of 3 months on showing sufficient cause for not filing Appeal within the normal period of limitation. Hence the impugned order treating the Appeal under the Central Excise Act is not sustainable.
5. Revenue pointed out that the adjudicating authority confirmed the demand of duty after denying credit under Rule 14 of CENVAT Credit Rules read with proviso to Section 11A of Central Excise Act and penalty was also imposed under CENVAT Credit Rules hence the Appeal before the Commissioner(Appeals) is against the adjudication order which was passed under the Central Excise Act and Rules hence the provisions of Section 35 of Central Excise Act will apply in respect of the Appeal filed against such adjudication order. The Revenue also pointed out that the preamble to the adjudication order also specifically indicated that the Appeal be filed within 60 days before the Commissioner(Appeals).
6. We find in this case the Commissioner(Appeals) dismissed the Appeal as the same has been filed beyond the condonable period by the Commissioner(Appeals) as provided under Section 35 of Central Excise Act. The only contention of Appellant is that they were under the impression that the proceedings were under the Finance Act 1994 in respect of Service Tax therefore as per the provisions of Section 85 of Finance Act Appeal is to be filed within 3 months and Commissioner is empowered to condone further period of 3 months. We find that in Show Cause Notice the provisions of Finance Act along with provisions of Central Excise Act and Rules were invoked. However, the adjudicating authority after taking into consideration the reply filed by the Appellant and after affording an opportunity of hearing to the Appellant confirmed the demand after denying the credit under Rule 14 of CENVAT Credit Rules, read with proviso to Section 11A of Central Excise Act and penalty was imposed under CENVAT Credit Rules. The reading of the adjudication order clearly shows that it is in respect of CENVAT Credit under Central Excise Act and Rules. Therefore we find no merit in the contention of Appellant that they were under bona fide belief that the proceedings were under the Finance Act in respect of Service Tax. As per the provisions of Section 35 of Central Excise Act the Commissioner is empowered to condone delay of 30 days beyond the normal period of limitation of 60 days as held by the Honble Supreme Court in the case of Singh Enterprises v. CCE, Jamshedpur 2008 (221) ELT 163 (S.C.).
7. In view of this we are taking the Appeal for disposal itself along with Stay Application. As the adjudication order was passed under the Central Excise Act and CENVAT Credit Rules therefore we find no infirmity in the impugned order whereby taking into consideration provisions of Section 35 of Central Excise Act the Appeal was dismissed. In view of the fact that demand is confirmed under Central Excise Act & CENVAT Credit Rules hence we also find no merit in the contention of Appellant that the Appeal filed before the Commissioner(Appeals) was in the format provided for the Service Tax. Similarly the Appellant also filed appeal before the Tribunal by treating the same as the Service Tax matter. The Stay Petition and Appeal is dismissed.
(Pronounced and dictated in the open court.) SD/ SD/ (M.VEERAIYAN) (S.S.KANG) MEMBER(TECHNICAL) VICE PRESIDENT sm 4 Appeal No.S.T. Ap.269/09