Custom, Excise & Service Tax Tribunal
M/S. Larsen & Toubro Limited vs Commissioner Of Central Excise, ... on 11 November, 2009
CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
EAST ZONAL BENCH:KOLKATA
STAY PETITION NO.703/09
AND
SERVICE TAX APPEAL NO.219/09
[ARISING OUT OF ORDER-IN-APPEAL NO.21/ST/B-II/2009 DATED 10.06.2009 PASSED BY COMMISSIONER (APPEALS), CENTRAL EXCISE, CUSTOMS & SERVICE TAX, BHUBANESWAR-II]
M/S. LARSEN & TOUBRO LIMITED
APPLICANTS/APPELLANTS
VERSUS
COMMISSIONER OF CENTRAL EXCISE, CUSTOMS & SERVICE TAX, BHUBANESWAR-II
RESPONDENT COMMISSIONER
APPEARANCE:
SHRI YASH DEV ARYA, ASSISTANT GENERAL MANAGER OF THE APPLICANT/APPELLANT COMPANY; SHRI B.B.AGRAWAL, JT. CDR FOR THE REVENUE. CORAM:
SHRI S.S.KANG, VICE PRESIDENT DATE OF HEARING/ DECISION: 11.11.09 ORDER NO Per SHRI S.S.KANG Heard both sides.
2. The Applicant filed this Application for waiver of predeposit of duty of Rs.9,56,077.00 and penalty of Rs.10,000.00. The demand is confirmed after denying CENVAT Credit in respect of the Service Tax paid on GTA Service relating to outward transportation of the manufactured goods. The Commissioner (Appeals) directed the Applicant to deposit an amount of Rs.5.00 lakhs for hearing of the appeal before him. The Applicant made the deposit by way of reversal of the CENVAT Credit. But the Commissioner (Appeals) had not accepted this reversal of Credit as fulfillment of the conditions of the Stay Order passed and accordingly, dismissed the appeal for non-compliance to the Stay Order under Section 35F of the Central Excise Act.
3. After hearing both sides, I find that in this case, the demand is in respect of availability of CENVAT Credit and the Commissioner (Appeals) in the impugned Order directed the Applicant to deposit an amount of Rs.5.00 lakhs meaning thereby, reversal of Rs.5.00 lakhs towards the CENVAT Credit taken by the Applicant. As the dispute is in respect of CENVAT Credit, therefore I find that the deposit of Rs.5.00 lakhs from the CENVAT Account by way of reversal is compliance to the Stay Order passed by the Commissioner (Appeals) and hence, predeposit of the remaining amounts of duty, interest and penalty is waived for hearing of the appeal. The instant stay petition is thus allowed.
4. The Commissioner had not decided the appeal on merits and dismissed the same for non-compliance to the provisions of Section 35F of the Central Excise Act. As stated above that the deposit of Rs.5.00 lakhs from the CENVAT Account by way of reversal is compliance to the Stay Order passed by the Commissioner (Appeals), therefore the impugned Order is set aside and the matter is remanded to the Commissioner (Appeals) to decide the appeal on merits after affording an opportunity to the Appellant. The appeal is disposed off by way of remand.
Pronounced and dictated in the open court.
Sd/-
(S.S.KANG) VICE-PRESIDENT DUTTA/ 2 SERVICE TAX APPEAL NO.219/09