Custom, Excise & Service Tax Tribunal
Cce, Delhi-Iv vs M/S A.R. Industries on 22 February, 2010
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
NEW DELHI
COURT NO. II
Excise Appeal No. 654 of 2008-SM
(Arising out of Order-in-Appeal No. 1/CE/Appl/DLH-IV/2008 dated 17.1.2008 passed by the Commissioner (Appeals), Central Excise, Delhi-I)
CCE, Delhi-IV Appellant
Vs.
M/s A.R. Industries Respondent
Appearance:
Appeared for Appellant : Shri I. Baig, SDR Appeared for Respondent : Shri K.L. Handa, Consultant Excise Appeal No. 667 of 2008-SM
(Arising out of Order-in-Appeal No. 498/KKG/RTK/2007 dated 12.12.2007 passed by the Commissioner (Appeals), Central Excise, Delhi-III) M/s Cemcon Track Industries Appellant Vs. CCE, Rohtak Respondent Appearance :
Appeared for Appellant - Shri Atul Gupta, C.S. Appeared for Respondent - Shri V.K. Saxena, Jt. CDR Excise Appeal No. 674 of 2008-SM
(Arising out of Order-in-Original No.3/2008 dated 13.2.2008 passed by the Commissioner, Central Excise, Jaipur) M/s Modern Transformer Appellant Vs. CCE, Jaipur Respondent Appearance :
Appeared for Appellant - Shri Atul Gupta, C.S.
Appeared for Respondent - Shri S.K. Bhaskar, DR
Date of Hearing : 22.2.2010
CORAM: HONBLE MR. D.N. PANDA, JUDICIAL MEMBER
Order No.dated.
Per D.N. Panda:
In all these three appeals, the ld. Counsel appearing preliminarily submits that it was not known to anybody about arise of liability on supplementary invoice till judgement in SKF India Ltd. came up. The assessees were under bonafide belief that the demand arising under supplementary invoices shall not call for payment of interest. When such a factual aspect was known to Revenue the limitation for recovery was also well known to that Authority. But unfortunately the limitation aspect has not been dealt by both the authorities below. Both ld. Counsels submit today that recently there was matter before Court No. 1 of Tribunal in the case of KEC International Ltd. Vs. CCE reported in 2010 (96) RLTONLINE 48 (CESTAT-Del.) granting fair opportunity of hearing on limitation issue. That judgement was made by Tribunal on 14.10.09. Shri Handa appearing for the respondent in Appeal Case No. E/654/08 of M/s A.R. Industries filed by Revenue submits that the demand is very negligible towards interest for which Revenues appeal should be dismissed in exercise of discretion by Tribunal.
2. Revenues submission today is that when liability is determined at a future date but reckoning such liability from the date of removal of excisable goods, liability is said to have been accrued from that date calling for interest liability said to have arisen for non-payment of duty liability in terms of supplementary invoices. Therefore limitation does not apply.
3. Heard both sides and perused the record.
4. At the very outset, it can be said that the discretion is to be exercised bonafide and not in arbitrary manner. When a question of law arises for decision, quantum of demand is immaterial because of far reaching consequence of a judgment. Therefore it is not desirable to dismiss the appeal of Revenue.
5. When the ld. Counsels suggest that there should be a judicial discipline following the decision of Court No. 1 in the case of M/s KEC International Ltd. to send the matter on limitation for retest of the issue, they shall not be deprived of justice. There is force to consider their prayer for appropriate resolution of the dispute in the light of the decision made in the case of M/s KEC International (supra). Shri Handa having repeatedly submitted that no one should be deprived of process of justice by any discriminatory approach, it has become necessary to send all the appeals to the ld. Adjudicating authority to have advantage of reading of the decision of this Tribunal in the case of M/s KEC Industries Ltd. (supra) and decide the issue both on limitation and appropriateness of calling for demand of interest.
6. All parties are entitled to fair trial in the remand proceeding to adduce the evidence and plead on the question of law as that shall be permissible to them.
7. In the result, all the three appeals are remanded to the respective adjudicating authorities.
(Dictated & pronounced in open Court) (D.N. PANDA) JUDICIAL MEMBER RM