Custom, Excise & Service Tax Tribunal
M/S Kec International Ltd vs Commissioner Of Central Excise & ... on 30 September, 2011
IN THE CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL
WEST ZONAL BENCH AT MUMBAI
E/S/1396/10 in Appeal No. E/1213/10
(Arising out Order-in-Appeal No. SR/135/NGP/2010 dated 26.4.2010 passed by the Commissioner of Customs & Central Excise (Appeals), Nagpur)
For approval and signature:
Honble Mr. Ashok Jindal, Member (Judicial)
Honble Mr. P.R. Chandrasekharan, Member (Technical)
1. Whether Press Reporters may be allowed to see No
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 Yes CESTAT (Procedure) Rules, 1982 for publication
in any authoritative report or not?
3. Whether Their Lordships wish to see the fair copy Yes
of the Order?
4. Whether Order is to be circulated to the Departmental Yes
authorities?
M/s KEC International Ltd.
Appellant
Vs.
Commissioner of Central Excise & Customs, Nagpur
Respondent
Appearance:
Shri Archit Agarwal, CA for the appellant Shri Navneet, AR for the respondent CORAM:
Honble Mr. Ashok Jindal, Member (Judicial) Honble Mr. P.R. Chandrasekharan, Member (Technical) Date of hearing : 30.09.2011 Date of decision : 30.09.2011 O R D E R No:..
Per: Mr. Ashok Jindal, Member (Judicial) The appellants are in appeal along with stay application. As the issue involved is of narrow compass, we take both for disposal at this stage as agreed by both sides.
2. The facts of the case are that the appellant are having two factories, one at Jabalpur and another at Nagpur. In the year 2006 while clearing their final product from their Jabalpur factory, inadvertently they debited the duty contained in CENVAT account in Nagpur factory. Later on when they released, they paid the duty from their Jabalpur factory but took suo motu credit in the Nagpur factory. A show-cause notice was issued in September 2009 to the Nagpur factory for denying of suo motu credit taken by the appellant. Therefore a demand of Rs.30,49,128/- was proposed along with interest and penalties. In adjudication duty demand was confirmed along with penalty and penalty of Rs.25000/- under Rule 25 along with interest. The appellants filed appeal before the Commissioner (Appeals) who directed them to make a pre-deposit of the duty demand which appellant failed to do so. Therefore appeal was dismissed for non-compliance of the stay order. Hence the appellants are before us.
3. The ld. Consultant on behalf of the appellant submits that after the dismissal of the appeal by the Commissioner (Appeals), the adjudicating authority has appropriated the whole demand of duty, interest and penalties against their rebate claims. He, therefore, prayed that stay be granted matter be remanded to the Commissioner (Appeals) with a direction to decide the issue on merits.
4. Heard and considered.
5. As the whole of the demand in the impugned order has been appropriated by the adjudicating authority against the rebate claim filed by the appellant, therefore the stay order of the Commissioner (Appeals) has been complied with. We further find that the Commissioner (Appeals) has not passed the order on merits. Therefore, the matter needs examination by the Commissioner (Appeals) on merits. As the whole of the demand has been appropriated, therefore, after reporting compliance we sent the matter back to the Commissioner (Appeals) for passing an order on merits without insisting on pre-deposit after giving reasonable opportunity to the appellant to present their case.
6. Appeal and stay application are disposed of in the above manner.
(Dictated in Court) (P.R. Chandrasekharan) (Ashok Jindal) Member (Technical) Member (Judicial) SR 3