Custom, Excise & Service Tax Tribunal
Shalimar Paints Ltd vs Commr. Of Central Excise, Kolkata-Ii on 22 December, 2011
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
EAST ZONAL BENCH: KOLKATA
M.A. (COD)-13/09, Stay Petition-13/09
&
Excise Appeal No. 10/2009
(Arising out of Order-in-Original No. 12-14/Commr./CE/Kol-II/Adjn./2008-09 dated-19.06.2008 passed by the Commissioner of Central Excise, Kolkata-II)
For approval and signature:
SRI S.K. GAULE, HONBLE TECHNICAL MEMBER
DR.D.M. MISRA, HONBLE JUDICIAL MEMBER
====================================================
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 authoritative report or not ?
3. Whether Their Lordships wish to see the fair copy :
of the Order?
4. Whether Order is to be circulated to the Departmental :
Authorities ?
Shalimar Paints Ltd.
Applicant (s)/Appellant (s)
Vs.
Commr. of Central Excise, Kolkata-II Respondent (s)
Appearance:
Sri J.P. Khaitan, Sr. Advocate
& Sri Sourabh Bagaria, Advocate
for the Applicant/Appellant (s)
Sri B.B. Agarwal, Commr. (A.R.)
for the Respondent (s)
CORAM:
SRI S.K. GAULE, HONBLE TECHNICAL MEMBER
DR.D.M. MISRA, HONBLE JUDICIAL MEMBER
Date of Hearing : 22/12/11 Date of decision: -22/12/2011
ORDER NO
Per Shri S.K. GAULE
Heard both sides.
2. The appellant filed this application for condonation of delay of 100 days. In the circumstances explained in affidavit filed by the applicant the delay is condoned. After condoning the delay, we take up the misc. petition filed by the applicant for stay of deposit. The Ld. Counsel appearing for the applicant made a fair offer for deposit of 25% (Twenty Five percent only) of the total duty involved in this case. Accordingly, the applicant is directed to make pre deposit of the aforesaid amount within eight weeks from today and report compliance by 29th of February, 2012.
3. After taking into consideration all the facts of the case, we find that appeal itself can be disposed of at this stage.
4. Ld. A.R. (commissioner) appearing for the Department pointed out that the applicant/appellant did not participate in the adjudication and they have neither filed reply to the show cause notice nor appeared for the personal hearing granted by the adjudicator. Ld. A.R. appearing for the Department also pointed out that the facts in this case are different from the facts which have been earlier decided by this Tribunal in appellants own case vide order No. A-704/CAL/2000 dated 26.05.2000 reported in 2001 ELT 451. He also brought to our notice para (V) from which it is revealed that the pump run by electric motors were being used for transferring the raw materials from their underground as well as the ground storage tanks into over head tanks and to barrels for manufacture of the said goods and a small electric motor operated pump seated on a mobile trolley was being operated for the purpose of pumping out the raw materials from the barrels of the Thinner manufacturing vessels. We find that use of electric pump has not been examined in this case which are required to be examined. In these circumstances we remand the case to Ld. Commissioner to examine the above aspect and decide the case afresh. It is made clear that all the issues are open to both the sides and they are at liberty to produce the documents and reasonable opportunity of hearing may be given to the appellant. It is also made clear that the appellant is directed to report compliance of pre-deposit to Ld. Commissioner (Appeal). Misc. application for COD and stay are disposed of. Appeal is allowed by way of remand.
(Dictated and pronounced in the open court) Sd/- 23.12.11 Sd/-23.12.11 (DR. D.M. MISRA) (S.K. GAULE) JUDICIAL MEMBER TECHNICAL MEMBER k.b./- Excise Appeal No. 10/2009 2