Custom, Excise & Service Tax Tribunal
M/S. Astrix Lab. Ltd vs Cce, Hyderabad on 20 April, 2012
CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
SOUTH ZONAL BENCH AT BANGALORE
Bench - SMB
Court I
Date of Hearing:20/04/2012
Date of decision:20/04/2012
Application No.E/Misc./466/2011; E/Stay/1723/2011
Appeal No.E/2782/2011
(Arising out of Order-in-Appeal No.54/2011(H-I)CE dt. 29/7/2011 passed by CC,CE&ST(Appeals), Hyderabad)
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?
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 Lordship wish to see the fair copy of the Order?
4.
Whether Order is to be circulated to the Departmental authorities?
M/s. Astrix Lab. Ltd.
..Appellant(s)
Vs.
CCE, Hyderabad
..Respondent(s)
Appearance Ms. Neetu James, Advocate for the appellant.
Mr. M.M. Ravi Rajendran, Deputy Commissioner(AR) for the Revenue.
Coram:
Honble Mr. P.G. Chacko, Member(Judicial) FINAL ORDER No._______________________ This application filed by the appellant seeks waiver and stay in respect of duty of Rs.9,73,751/- demanded for the period from August, 2006 to March, 2009. On a perusal of the records and hearing both sides, I have found the appeal itself fit for summary disposal. Hence, after dispensing with predeposit, I take up the appeal.
2. This appeal is directed against an order passed by the learned Commissioner(Appeals) dismissing the assessees appeal (filed against an adverse order of the adjudicating authority) on the sole ground of non-compliance with Section 35F of the Central Excise Act without entering into the merits of the appeal. The adjudicating authority had denied CENVAT credit of Rs.9,73,751/- on MS plates, angles, channels, beams, rounds etc. to the appellant on the ground that these items did not qualify to be capital goods. The consequential demand of duty came to be confirmed against the party in adjudication of show-cause notice dt. 27/08/2009 wherein the Department had invoked the extended period of limitation on the alleged ground of suppression of facts by the noticee with intent to evade payment of duty. The show-cause notice had also proposed a penalty on the party under Rule 15(2) of the CENVAT Credit Rules, 2004 read with Section 11AC of the Act. The adjudicating authority, however, refrained from imposing this penalty after holding that the assessee entertained a bona fide belief in favour of availing and utilizing credit as above. The Department did not review the order of adjudication in relation to penalty. Today it is submitted by the learned counsel for the appellant that, if Section 11AC penalty is not imposable, the extended period of limitation is not invokable either. This submission stems from the fact that the grounds for imposing penalty under Section 11AC are identical to those for invoking the extended period of limitation under the proviso to Section 11AC(1) of the Act. It is further submitted that the amount of duty demanded for the normal period of limitation (Rs.1,27,019/-) has been deposited, albeit, under protest. I have found documentary evidence of this deposit. This deposit was made after the impugned order was passed and before filing this appeal and the same cannot be under protest. At this stage, the learned counsel, under instructions, submits that the protest is withdrawn.
3. In the above scenario, I am of the view that the above payment of Rs.1,27,019/- is sufficient predeposit for the learned Commissioner(Appeals) to take up the assessees appeal and dispose it of on merits. Accordingly, the impugned order is set aside and this appeal is allowed by way of remand with a request to the Commissioner(Appeals) to dispose of the assessees appeal against the Order-in-original on merits without insisting on any further deposit and in accordance with law and the principles of natural justice. The stay application also stands disposed of. The miscellaneous application filed by the appellant contains a prayer for out-of-turn disposal of the stay application. Now that the stay application stands disposed of, the other application is dismissed as infructuous.
( Pronounced and dictated in open court ) ( P.G. CHACKO ) MEMBER (JUDICIAL) Nr 4