Customs, Excise and Gold Tribunal - Mumbai
Rathi Re-Rolling Mills, Shri Dipak ... vs Commissioner Of Central Excise, ... on 23 June, 2003
ORDER Ms. Jyoti Balasundaram, Member (J)
1. After hearing both sides for sometime on the applications for waiver of the pre-deposit of balance duty of Rs. 7,76,077/- and penalty of Rs. 2 lakhs imposed on the applicants as well as penalty of Rs. 25,000/- on each of the three partners, we found that it was possible to decide the appeals themselves at this stage itself. Hence after waiving pre-deposit of the duty and penalty we proceed to hear and dispose of the appeals with the consent of both sides.
2. The Addl. Commissioner of Central Excise had confirmed duty demand of Rs. 18,90,945/- on account of shortages. He also imposed penalty as mentioned above on the company as well as on its partners. The applicants have filed the applications for waiver of pre-deposit and also paid a sum of Rs. 11,64,868 before the issue of show cause notice. They plead, in addition to arguing the case on merits, that demand is barred by limitation as show cause notice dated 16.6.1999 was issued beyond 6 months from the relevant date. However, Commissioner (Appeals) directed pre-deposit of entire balance of duty of Rs. 7,76,077/-, waived pre-deposit of penalty imposed on the two partners and directed pre-deposit by the Company and one partner. The plea of time bar was not considered in the order of stay which was passed on 30.3.01. The Commissioner (Appeals) dismissed the appeals on the ground that the applicants have not complied with the direction for pre-deposit. Hence these appeals.
3. We note that over 50% of the duty confirmed already stands deposited. We also note that the Commissioner (Appeals) has not considered the issue on merits and also on limitation. Accepting the amount already paid by them as sufficient compliance with the requirement of Section 35F, we remand the matter to the lower appellate authority for decision on merits of the demand and also plea of limitation raised by the appellants. He shall pass fresh order after giving reasonable opportunity of being heard to the appellants. The appeals are thus allowed by remand.