Andhra HC (Pre-Telangana)
M/S. Emmar Logistics Pvt. Ltd., ... vs 1.Commissioner Of Customs, Central ... on 2 August, 2017
Equivalent citations: AIRONLINE 2017 HYD 64
Author: T.Rajani
Bench: T.Rajani
HONBLE SRI JUSTICE V.RAMASUBRAMANIAN AND HONBLE SMT. JUSTICE T.RAJANI
C.E.A. No.4 of 2017
02-8-2017
M/s. Emmar Logistics Pvt. Ltd., D.No.30-7-17, 1st Floor, Womens Indians Association Mansion, Dabagardens, Visakhapatnam-20
1.Commissioner of Customs, Central Excise & Service Tax, Visakhapatnam-1 2. CESTAT (Customs, Central Excise & Service Tax
Appellate Tribunal);, Regional Bench, Hyderabad Respondents
Counsel for Appellant: Mr. P.N. Sunil Kumar Reddy
Counsel for Respondents: Smt Sundari R. Pisupati, Senior Standing Counsel for CEC and ST
<Gist:
>Head Note:
? Cases referred:
Nil.
HONBLE SRI JUSTICE V.RAMASUBRAMANIAN
AND
HONBLE SMT. JUSTICE T.RAJANI
C.E.A. No.4 of 2017
Judgment: (per V.Ramasubramanian, J.)
Aggrieved by an onerous condition imposed by CESTAT for
the grant of waiver as well as the stay, the assessee has come up
with the above appeal under Section 35(G) of the Customs Act,
1962.
2. Heard Mr. P.N. Sunil Kumar Reddy, learned counsel for
the petitioner and Smt. Sundari R. Pisupati, learned Senior
Standing Counsel for the Department.
3. As against an Order-in-Original confirming a demand of
Rs.27,88,750/- for the period from 2007-08 to 2009-10 under
Rule 14 of the CENVAT Credit Rules, 2004, the petitioner/
assessee filed a statutory appeal before CESTAT, along with the
applications for waiver and stay. By an order dated 18-12-2015,
the CESTAT granted stay and waiver on condition that a sum of
Rs.22 lakhs is paid. Aggrieved by the said order, the petitioner is
before us.
4. On and from 06-8-2014, the requirement of pre-deposit
has been amended. By the said amendment, it is enough if
an assessee pays 10% of the demand, for the purpose of
maintaining an appeal. But unfortunately, the Order-in-Original
in the case of the petitioner was passed on 31-01-2012, prior to
the amendment. Therefore, the Tribunal had the discretion to
permit waiver from 0% to 100%.
5. But the order of the Tribunal discloses that no rhyme or
reason was given for fixing an amount of Rs.22 lakhs. After
extracting the case of the appellant in the first 3 paragraphs, the
Tribunal passed the impugned order in 2 paragraphs. These 2
paragraphs, namely, paragraphs-4 and 5 of the order of the
Tribunal read as follows:
4. Having heard both sides and perused the records, we are
unable to accept the claim of the appellant that they have,
prima facie, a case in their favour.
5. Accordingly, we direct the appellants to make a
pre-deposit of Rs.22,00,000/- within four weeks as a
condition for staying recovery of the balance amount
confirmed in the impugned order.
6. Since no reason has been stated by the Tribunal for
coming to the conclusion, we are of the considered view that the
order of the Tribunal requires to be set aside. Since no reasons
are stated by the Tribunal for fixing the amount of Rs.22 lakhs,
out of a demand of Rs.27,88,750/-, the ideal course of action for
us would be to remand the matter back to the Tribunal for
reconsideration. But we do not propose to do so, since the appeal
before the Tribunal was filed in the year 2014 and the impugned
order was passed in December, 2015. Therefore, rather than
making an order of remand for the purpose of reconsidering the
application for waiver and stay, we are of the view that we could
ourselves fix an amount and direct the Tribunal to take up the
main appeal for disposal if the condition imposed by us is
complied with.
7. As seen from the Order-in-Original, the demand arose on
account of the allegation that the assessee had taken CENVAT
credit on the entire input services used for providing exempted
services as well as output service on which service tax is payable.
Therefore, this is not a case where the petitioner may be entitled
to 100% waiver. But at the same time, this is a case where
hardship is pleaded by the petitioner. Therefore, we are of the
considered view that by directing the petitioner to pay 1/3rd of the
duty demanded, the application for waiver and stay could be
allowed. But 1/3rd of the demand comes to little more than Rs.9
lakhs. Therefore, we would round it off to Rs.10 lakhs.
8. In view of the above, the appeal is allowed, the order of
the Tribunal is set aside and the petitioner is granted a time of 8
(eight) weeks from the date of receipt of a copy of this order to
deposit a sum of Rs.10,00,000/- (Rupees ten lakhs only) with the
original authority. Upon such deposit being made within the
period stipulated and upon the petitioner filing a memo to the
said effect before the Tribunal, the Tribunal shall take up the
main appeal and dispose of it in accordance with law. If the
petitioner had paid any amount out of the demand made under
the Order-in-Original, the same shall be given credit to as against
the amount fixed by this order. The miscellaneous petitions, if
any, pending in this appeal shall stand closed.
No costs.
___________________________
V.RAMASUBRAMANIAN, J.
____________ T.RAJANI, J. 02nd August, 2017