Custom, Excise & Service Tax Tribunal
Cce, Lucknow vs M/S.Kundan Castings (P) Ltd on 25 April, 2011
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL,
WEST BLOCK NO.II, R.K. PURAM, NEW DELHI-110066.
SINGLE MEMBER BENCH
E/Stay/3804/10 and Appeal No. E/3945/10
(Arising out of Order-in-Appeal No.260-CE/LKO/2010 dt.15.09.2010 passed by the CCE (Appeals), Lucknow)
For approval and signature:
Honble Mr.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 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?
CCE, Lucknow Appellants
Vs.
M/s.Kundan Castings (P) Ltd. Respondent
Present for the Appellant: Shri Anil Khanna, SDR
Present for the Respondent: Shru A.Kr.Shukla, Advocate
Coram: Honble Mr.M.Veeraiyan, Member (Technical)
Date of Hearing/decision: 25.04.2011
ORDER NO._______________
PER: M.VEERAIYAN
Heard both sides.
2. The original authority vide order dated 28.3.2006 confirmed the demand and imposed penalty on the respondents M/s.Kundan Castings Pvt.Ltd. On appeal, the Commissioner (Appeals) has set aside the order of the original authority vide his order dated 28.7.20076. On appeal by the department, the Tribunal has dismissed the Revenues appeal.
3. The order of the original authority dated 28.3.2006 was also reviewed by the Commissioner and on appeal filed before the Commissioner (Appeals) and the Commissioner (Appeals) vide order dated 15.9.2010 has set aside the order of the original authority dated 28.3.2006 and directed the adjudicating authority to adjudicate the case de novo after taking into account relevant judicial pronouncements in the case. The reason for filing the appeal in the grounds of appeal reads as under:
Now in the other appeal filed by the Department against the Order-in-Original passed by the Adjudicating Authority, the Commissioner (Appeals), Lucknow vide the impugned Order-in-Appeal No.260-CE/LKO/2010 dt.15.09.2010 has rightly set aside Order-in-Original dated 28.3.2006 again. However, further directions to the adjudicating authority to adjudicate the case de novo after taking into account relevant judicial pronouncements in the case is not correct.
4. It is not disputed that the order of the original authority dated 28.3.2006 stands set aside by the Commissioner (Appeals) vide order dated 28.7.2006 and the Revenues appeal to the Tribunal stands dismissed vide order dated 28.1.2008 of the Tribunal. Under these circumstances, the question of Commissioner (Appeals) setting aside the order of the original authority once again vide order dated 15.9.2010 does not arise. This order is nonest. The appeal filed by the department against this order has to be treated as infructuous. Merely because previous order of the Tribunal dt.28.1.2008 is under appeal before Honble High Court, the question of granting stay against the order dated 15.9.2010 of the Commissioner (Appeals) which is nonest, does not arise.
5. The appeal alongwith stay petition is dismissed as infructuous.
Pronounced in the open court) (M.VEERAIYAN) MEMEBR (TECHNICAL) mk 3