Custom, Excise & Service Tax Tribunal
M/S. Heidelberg Cements India Ltd vs Cce, Bangalore on 30 September, 2011
CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
SOUTH ZONAL BENCH AT BANGALORE
Court I
Date of Hearing:30/09/2011
Date of decision:30/09/2011
Application No.E/Stay/557/2011
Appeal No.E/883/2011
(Arising out of Order-in-original No.16/2010 dt. 20/5/2010
passed by Asst. Commissioner, CE, Bangalore)
For approval and signature:
Honble Mr. P.G. Chacko, Member(Judicial)
1.
Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
No
2.
Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
Yes
3.
Whether their Lordship wish to see the fair copy of the Order?
Seen
4.
Whether Order is to be circulated to the Departmental authorities?
Yes
M/s. Heidelberg Cements India Ltd.
..Appellant(s)
Vs.
CCE, Bangalore
..Respondent(s)
Appearance Ms. Neetu James, Advocate for the appellant.
Mr. K.S. Kantaraj, JDR for the Revenue.
Coram:
Honble Mr. P.G. Chacko, Member(Judicial) FINAL ORDER No._______________________2011 This application filed by the appellant seeks waiver of predeposit and stay of recovery. After hearing both sides, I am of the view that the appeal itself requires to be summarily disposed of. Accordingly, after dispensing with predeposit, I take up the appeal.
2. In adjudication of a show-cause notice, the Assistant Commissioner confirmed demand and ordered recovery of Rs.3,64,361/- from the assessee under the proviso to Section 11A(1) of the Central Excise Act read with Rule 14 of the CENVAT Credit Rules, 2004, also ordered recovery of interest thereon under Rule 14 ibid read with Section 11AB of the Act and imposed a penalty of Rs.10,000- on the appellant under Rule 15(3). Aggrieved by this decision of the Assistant Commissioner, the party preferred an appeal in Form No.ST-4 to the Commissioner (Appeals). They also filed an application for condonation of the delay of the appeal, without citing any provision of law. The appellate authority held that the appellant had not made out sufficient cause for condoning the delay and therefore rejected the application filed by the party. Consequently, the appeal also came to be dismissed as time-barred. The operative part of the appellate Commissioners order reads as follows:-
I dismiss the appeal filed by M/s. Mysore Cements Ltd., (Presently Heidelberg Cements India Ltd.) Post- Ammasandra, Dist: Tumkur 572 211, against the Order-in-Original No.16/2010 dated 20/05/2010 passed by the Assistant Commissioner of Central Excise, A Division, for non-compliance of Section 35 of the Central Excise Act, 1944.
3.1. Ld. Counsel for the appellant submits that their appeal in Form No.ST-4 was filed under Section 85 of the Finance Act, 1994 and hence the application for condonation of its delay should have been considered under the proviso to sub-section 3 of Section 85 ibid. It is submitted that, under Section 85(3), the appellant had 3 months for presenting an appeal from the date of receipt of the Order-in-Original and that any delay upto 3 months beyond the aforesaid period of 3 months was condonable by the Commissioner(Appeals) under the proviso to the sub-section. It is submitted that the ld. Commissioner(Appeals) overlooked the provisions and unreasonably rejected the appeal and COD application in terms of Section 35 of the Central Excise Act, 1944. It is, therefore, urged that the matter be remanded to the Commissioner(Appeals) for fresh consideration of the COD application under Section 85(3) of the Finance Act, 1994.
3.2. In support of the above submissions, ld. Counsel has relied on Vikram Ispat Vs. CCE, Khandeshwa, Navi Mumbai [2009(238) ELT 776 (Tri. Mumbai)].
4. The DR points out that the partys appeal before the Commissioner(Appeals) was filed under Section 35 of the Central Excise Act and therefore the limitation provisions of that section were rightly invoked by the appellate authority. It is submitted that, in that view of the matter, the ld. Commissioner(Appeals) found the inordinate delay of the partys appeal to be uncondonable.
5. I have considered the submissions and have also considered the relevant provisions of law. The format in which the party preferred appeal to the Commissioner(Appeals) is available on record. On the one hand, Form No.ST-4 was used by the party and on the other hand, Section 35 of the Central Excise Act was mentioned in the cause title of the appeal. The COD application filed before the Commissioner(Appeals) did not make any mention of sub-section 3 of Section 85 of the Finance Act, 1994. The appellant was obviously confused as to what provisions of law were to be selectively invoked. This confusion appears to have made its way into the appellate Commissioners mind. Evidently, the issue raised before me by the Counsel today was not framed in this manner before the ld. Commissioner(Appeals). In this scenario, the matter requires to be remanded. Accordingly, after setting aside the impugned order but without expressing any view on the issue, I request the ld. Commissioner(Appeals) to reconsider the COD application filed by the party and take fresh decision after giving them reasonable opportunity of being heard. The appeal stands allowed by way of remand.
(Pronounced and dictated in open court) ( P.G. CHACKO ) MEMBER (JUDICIAL) Nr 4