Custom, Excise & Service Tax Tribunal
M/S.Nicco Corporation Ltd vs Commissioner Of Central Excise, ... on 7 July, 2009
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE
TRIBUNAL, KOLKATA
EASTERN ZONAL BENCH: KOLKATA
Stay Petition Nos.SP-309-312/09 & SP-418/09
&
Appeal Nos.Ex.Ap. 236-239/09 & Ex.Ap. 299/09
1.(Arising out of Order-in-Appeal No.10-13/CE/B-I/2009 dated 09.02.2009 passed by the Commissioner(Appeals) of Central Excise, Customs & Service Tax, Bhubaneswar.)
2.(Arising out of Order-in-Appeal No.25/CE/B-I/2009 dated 06.03.2009 passed by the Commissioner(Appeals) of Central Excise, Customs & Service Tax, Bhubaneswar.)
FOR APPROVAL AND SIGNATURE
HON'BLE SHRI S.S. KANG, VICE PRESIDENT
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?
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1.M/s.Nicco Corporation Ltd.
2.M/s.Ballarpur Industries Ltd.
Applicant (s)/Appellant (s) Vs. Commissioner of Central Excise, Customs & Service Tax, BBSR-I Respondent (s) Appearance:
NONE for M/s.Nicco Corpn. and Adjn. Request for M/s. Ballarpur Industries. Shri A.K. Sharma, Authorized Representative (JDR) for the Revenue CORAM:
Hon'ble Shri S.S.Kang, Vice President Date of Hearing/Decision :- 07.07.2009 Date of Pronouncement :- 07.07.2009 ORDER NO............................................................................
Per Shri S.S.Kang.
1. Common issue is involved in these Appeals and therefore are being taken up together.
2. When the case was called none appeared on behalf of the Applicants inspite of notice.
3. Heard the learned Departmental Representative (JDR) for the Revenue.
4. The Applicants filed this Application for waiver of pre-deposit of duty and penalty.
5. The Applicants filed Appeals before Commissioner(Appeals) along with the Application for waiver of pre-deposit of duty and penalty. The Commissioner(Appeals) vide Stay Orders directed the Applicants to deposit a part of the duty amount for hearing the Appeal. Applicants paid the amounts as per the Stay Order from their CENVAT account and reported compliance. The Commissioner(Appeals) in the impugned order held that that Applicant should have paid the amounts as per the Stay Order in cash and not from the CENVAT account and dismissed the Appeals for non-compliance to the provisions of Section 35F of the Central Excise Act.
6. This issue whether in compliance to the Stay Order the amounts can be paid from CENVAT account is already settled. The Hon'ble Allahabad High Court in the case of India Casting Co. vs. CESTAT - reported in 1998 (104) ELT 17(All) accepted the compliance when the amount is deposited from the CENVAT account. The same view is taken by the Tribunal in the case of Birla Yamah vs. Collr. - 1996 (83) ELT 396(Tri). The Commissioner(Appeals). In the impugned order relied upon the decision of the Tribunal in the case of Suvidhe Ltd. - 1996 (82) ELT 177(Bom.) where the issue is not in respect of the amount of pre-deposit paid from credit account. Therefore in view of the decision of the Hon'ble Allahabad High Court (supra) the amount deposited by the Applicant from CENVAT account is compliance to the conditions of stay Order. Hence the impugned orders are set aside and the matter is remanded to the Commissioner(Appeals) to decide the Appeals on merits after affording an opportunity of hearing to the Appellants. Appeals are allowed by way of remand.
(Pronounced and dictated in the open court.) sd/ (S.S.KANG) VICE PRESIDENT sm 3 Appeal No.Ex.Ap. 236-239/09 & 299/09