Custom, Excise & Service Tax Tribunal
Bmm Ispat Ltd vs Commissioner Of Central Excise, ... on 15 November, 2017
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH BANGALORE Appeal(s) Involved: E/20730/2015-SM [Arising out of Order-in-Appeal No. BGM-EXCUS-000-DIVI-ADC-APP-HAB-15-2015 dated 28/01/2015 passed by Commissioner of Central Excise, MYSORE ] BMM Ispat Ltd #114, Danapur Village, Hospet Taluk, Bellary BELLARY - 583222 KARNATAKA Appellant(s) Versus Commissioner of Central Excise, Customs and Service Tax Mysore S1-S2, VINAYA MARGA, SIDDHARTHA NAGAR, MYSORE - 570011 KARNATAKA Respondent(s)
Appearance:
Mr. B. Venugopal, Advocate SWAMY ASSOCIATES G-8, FORTUNA ICON, APARTMENTS,JODIDAR ASHWATHAPPA FARM, SAHAKARA NAGAR, BANGALORE 560 092 For the Appellant Mr. J. Harish, AR For the Respondent Date of Hearing: 15/11/2017 Date of Decision: 15/11/2017 CORAM:
HON'BLE SHRI S.S GARG, JUDICIAL MEMBER Final Order No. 22800 / 2017 Per : S.S GARG The present appeal is directed against the impugned order dated 28.1.2015 passed by the Commissioner (A), whereby the Commissioner (A) has rejected the appeal being not admissible.
2. Briefly the facts of the present case are that appellants are engaged in the manufacture of sponge iron, M.S. Billets and other steel goods falling under Chapter 72 of the Schedule to the Central Excise Tariff Act, 1985. The Departments internal audit party vide their audit report dated 16.12.2011 during the course of audit of the appellants record pointed out that they have been clearing exempted final products namely, charcoal dust, dolachar and fly ash without payment of excise duty and they had not discharged the obligation under Rule 6 of the CENVAT Credit Rules, 2004 by paying an amount equivalent to 5% or 10% of the value of the exempted final products. They submitted that the dolachar, charcoal dust and fly ash are the waste and residue arising during the course of manufacture of the final products and the CENVAT credit cannot be varied or denied for the reason that any part of the credit is contained in waste or by-product. Disagreeing, the lower authority issued them with a show-cause notice dated 26.7.2013 proposing to demand the amounts of Rs.5,10,943/- representing 5% or 10% of the value of the exempted final product cleared for the period 07/2008 to 02/2011 and Rs.1,12,744/- being the Central Excise duty on dolachar and charcoal dust and fly ash cleared during the period 03/2011, besides proposing to recover the interest thereon; and for imposing penalties on them under the provisions of Rule 15(2) of the CCR read with Section 11AC of the Central Excise Act, 1944 and Rule 25 of the Central Excise Rules, 2002 and for confiscating goods cleared by them irregularly. They denied the allegation made vide their reply dated 14.8.2013 on various grounds including limitation. After personally hearing them on 19.9.2013, the lower authority passed the Order-in-Original, which has upheld the show-cause notice except for penalty imposition under Rule 25 of the Central Excise Rules and for confiscating the goods. Aggrieved by the said order, the appellant filed appeal before the Commissioner (A), who dismissed the appeal on limitation without going into the merit of the case.
3. Heard both the parties and perused the records.
4. Learned counsel for the appellant submitted that the impugned order is not sustainable in law as the same has been passed without considering the facts and the merits of the case. He further submitted that when the appeal was filed before the Commissioner (A), it was listed for hearing and during the hearing also, the appellant argued on merit. He further submitted that the appeal was filed within time. He further submitted that the Order-in-Original was passed by the Additional Commissioner on 12.3.2014, which was received by the appellant on 15.3.2014 as per the endorsement on the Order-in-Original and the appeal was filed on 15.5.2014, which was very much within limitation. But the learned Commissioner (A) has observed that the order was received by the appellant on 12.3.2014 and the appeal was filed on 15.5.2014 without filing the condonation application. The learned Commissioner (A) further observed that there was no sufficient cause for presenting the appeal beyond the period of limitation.
5. On the other hand, the learned AR reiterated the findings of the impugned order.
6. After considering the submission of both the parties and perusal of the material on record, I find that the impugned order dismissing the appeal on time bar is not sustainable in law because the appeal was filed within the period of limitation as provided under law. Further, I find that the Order-in-Original is dated 12.3.2014 and the same was received by the appellant on 15.3.2014 as per the endorsement on the Order-in-Original and thereafter, the appeal was filed within two months as provided under Section 35 of the Central Excise Act. The Commissioner (A) has wrongly observed that the order was received by the appellant on 12.3.2014 and therefore, the appeal is time barred, more so when no condonation application was filed with the appeal. In view of the facts stated above, I find that the appeal was very much within time and the Commissioner (A) dismissing the appeal on time bar is not sustainable in law and therefore, I set aside the impugned order by directing the Commissioner (A) to decide the appeal on merit. The appeal is disposed of by way of remand.
(Operative portion of the Order was pronounced in Open Court on 15/11/2017) S.S GARG JUDICIAL MEMBER rv...
5