Custom, Excise & Service Tax Tribunal
M/S. Shalimar Agro Tech (P) Ltd vs Cc, Visakhapatnam on 22 October, 2010
CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
SOUTH ZONAL BENCH AT BANGALORE
Bench Division Bench
Court II
Date of Hearing:22/10/2010
Date of decision:22/10/2010
Appeal No.C/136/07
(Arising out of Order-in-Appeal No.25&26/2006(V-II)Cus dt. 31/10/2006 CCE&C(Appeals), Visakhapatnam)
For approval and signature:
Honble Mr. M.V.Ravindran, Member(Judicial)
1.
Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
No
2.
Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
No
3.
Whether their Lordship wish to see the fair copy of the Order?
Seen
4.
Whether Order is to be circulated to the Departmental authorities?
Yes
M/s. Shalimar Agro Tech (P) Ltd.
..Appellant(s)
Vs.
CC, Visakhapatnam
..Respondent(s)
Appearance Mr. G. Shivadass, Advocate for the appellant.
Mr. D.P. Nagendra Kumar, Jt.CDR for the Revenue.
Coram:
Honble Mr. M.V.Ravindran, Member(Judicial) FINAL ORDER No._______________________2010 Per M.V.Ravindran This appeal is listed today for disposal.
2. A submission was made by the ld. DR that Vide Miscellaneous Order No.362/2010 dt. 20/8/2010, the Bench has already disposed the appeal filed against the order-in-appeal in appeal No.C/114/07. The Miscellaneous Order, in para-3, reads as under:-
3. In view of the repeated litigation noticed above from the facts aforesaid, notice under Section 129C(7) of Customs Act, 1962 is hereby given to the assessee to show cause the reason why repeated appeals were filed, being appeal No.C/114/2007 was filed on 29/1/007 against the same order-in-Appeal No.25 & 26 (V-II) Cus dt. 31/10/2007 and against the self same Order-in-Appeal, the present appeal No.C/136/2007 has been filed on 5/2/2007. Notice is also hereby given to the assessee to show cause why the appeal shall not be dismissed for the abuse of process of law and other consequence of the law to follow or not bringing out the fact of pendancy of appeal No.136/2007 while appeal No.114/2007 was disposed on 7/8/2007. The appellant is also required to explain being present before court, in person, on 22/10/2010 on the aforesaid matters and also is required to file a written reply on the above duly verified by an affidavit before the Tribunal on the next date of hearing on 22/10/2010. Till then the matter is adjourned.
3. Ld. Counsel, in light of directions as reproduced hereinabove, is appearing before us along with Mr. Mahesh Kumar Agarwal, Managing Director of the assessee. Ld. Counsel would draw my attention to the Order-in-Appeal in the current appeal and also in appeal No.C/114/07. It is her submission that the Order-in-Appeal has got two numbers 25 & 26/2006(V-II) Cus. It is her submission that the Order-in-Appeal has disposed of two orders-in-original and hence the appellant has filed two appeals.
4. Heard the ld. DR on the issue.
5. On perusal of the Order-in-Appeal, I find that the Order-in-Appeal has disposed of two orders-in-original. The appellant has filed appeal No.C/114/07 against one of the orders in the order-in-original in order-in-appeal and this appeal No.C/136/07 is against second order-in-original. In my considered view, the appellant is correct in filing two appeals against the order-in-appeal and has not filed any repeated appeals, as the Larger Bench decision of the Tribunal in the case of Ekantika Copiers (P) Ltd. Vs. CCE [1991(56) ELT 350 (Tri.LB)] has clearly settled the law, that assessee is required to file as many appeals as there are orders-in-original. In this case undisputedly there being two orders-in-original, assessee was correct in filing two appeals before the Tribunal, albeit both may be interconnected. It is seen that the assessee has filed an affidavit signed by the said Mr. Mahesh Kumar Agarwal, Managing Director. On perusal of the affidavit and records, I find that the explanation called for by the Tribunal vide Miscellaneous Order No.362/2010 dt. 20/8/2010 is to the satisfaction of the Bench and it is held that appeal No.C/136/07 as filed by the appellant is in accordance with the law.
6. On perusal of the records, I find that the Final Order No.889/2007 dt. 7/8/2007 disposed off order-in-appeal No.25 & 26/2006(V-II) Cus dt. 31/10/2006. The said final order is also applicable for the issue in the current appeal and impugned order has been set aside by the Division Bench, directing the lower authorities for adjusting the excess amount paid by the appellants towards the amount due from the appellants to the Department. On specific query from the Bench, ld. Counsel submits that there is no further communication from the Department as regards any interest payable by the assessee. In view of this, since the Final Order No.889/2007 dt. 7/8/2007 is passed by the Division Bench, it is binding on me and respectfully following the same, I set aside the impugned order to the extent it is challenged in this appeal. Ordered accordingly.
(Pronounced and dictated in open court) (M.V. RAVINDRAN) Member (Judicial) Nr 4