Customs, Excise and Gold Tribunal - Bangalore
Skf Boilers And Driers Private Limited vs The Commissioner Of Central Excise on 4 May, 2007
Equivalent citations: [2007]11STJ95(CESTAT-BANGALORE), 2008[9]S.T.R.206
ORDER S.L. Peeran, Member (J)
1. The stay application and appeal are taken up together as the issue lies in short compass. The Commissioner (A) by his Interim Stay No. 6/2006 dated 18.9.2006 had directed the appellants to pre-deposit an amount of Rs. 2,28,960/-, as the same was not deposited, the appeal has been dismissed for non-compliance in terms of proviso to Section 35F of the Central Excise Act. The appellant's contention is that due to inadvertency they had not filed an application seeking waiver of pre-deposit before issue of interim order. They had filed an application for recall of the interim order passed by the Commissioner (A), however, he has not taken the said application into consideration and has dismissed the appeal for noncompliance.
2. The learned Counsel submits that the interim order can be modified by the Commissioner (A) and the Commissioner (A) ought to have considered the application filed for recall of the interim order. He prays for remand of the case, so that the Commissioner (A) can consider their application for waiver of pre-deposit. He also submits that the issue is pertaining to recovery of Service Tax under the category of "Commissioning and Installation Services". He submits that the appellants were manufacturing and selling paddy processing machinery/plant/equipment for rice mills and therefore, there was sale of goods and service tax was not attracted.
3. Heard learned JDR in the matter.
4. We have carefully considered the submissions and we notice that after the interim order was passed the appellants have approached the Commissioner (A) for modification of the order for recall of the interim order. The said application has not been considered by the Commissioner (A). The Commissioner (A) has got inherent power to recall the interim order. The Commissioner (A) ought to have considered all the pleas of the appellants, which have raised in the grounds of appeal before passing an interim order. There is no finding with regard to the grounds taken in the interim order. The Commissioner (A) has put the appellants on terms with due application of mind, therefore the order is also not a speaking order. We set aside the impugned order and remand the matter to Commissioner (A) to reconsider the application filed by the appellants for waiver of pre-deposit and decide the issue in terms of law within a period of four months from the receipt of this order. Thus, the stay application and appeal are allowed by way of remand to Commissioner (A) for de novo consideration.
(Pronounced and dictated in open Court)