Custom, Excise & Service Tax Tribunal
Skol Breweries Ltd vs Aurangabad on 29 May, 2012
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
WEST ZONAL BENCH AT MUMBAI
APPLICATION ST/Stay-529/2012
APPEAL NO: ST/134/2012
[Arising out of Order-in-Appeal No: AGS(13) 139/2012 dated 13/01/2012 passed by the Commissioner of Central Excise & Customs (Appeals), Aurangabad.]
For approval and signature:
Honble Shri Ashok Jindal, Member (Judicial)
Honble Shri P.R. Chandrasekharan, Member (Technical)
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 CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
:
Yes
3.
Whether Their Lordships wish to see the fair copy of the Order?
:
Seen
4.
Whether Order is to be circulated to the Departmental authorities?
:
Yes
SKOL Breweries Ltd.
Appellant
Vs
Commissioner of Central Excise & Customs
Aurangabad
Respondent
Appearance:
Shri Bharat Raichandani, Advocate for the appellant Shri A.K. Prabhakar, Superintendent (AR) for the respondent CORAM:
Honble Shri Ashok Jindal, Member (Judicial) Honble Shri P.R. Chandrasekharan, Member (Technical) Date of decision: 29/05/2012 ORDER NO: ____________________________ Per: Ashok Jindal:
The appellant are in appeal along with stay application for staying the impugned demands under the impugned order wherein their appeal has been dismissed for non-compliance with the provisions of Section 35F of the Central Excise Act, 194 read with Section 83 of the Finance Act, 1994.
2. After hearing both the sides, we observe that the Commissioner (Appeals) has dismissed the appeal for non-compliance with the stay order dated 19/12/2011 without going into the merits of the case. Therefore, considering the submissions made by both the sides, we waive the requirement of pre-deposit and are of the opinion that the matter should go back to the Commissioner (Appeals) to decide the stay application on merits and thereafter pass an appropriate order.
3. We have gone through the stay order passed by the Commissioner (Appeals) wherein the appellant has challenged the jurisdiction of the Commissioner who has adjudicated the matter, in view of the situation where they have obtained centralised registration and as per the guidelines issued by the CBEC through Circular No. 137/50/2007-CX.4 dated 16/03/2007. But the Commissioner (Appeals) decided the stay application on the premise that the appellant has not pleaded any financial hardship. Therefore, the requirement to make pre-deposit of the entire dues confirmed against them is not proper in the eyes of law. While deciding the stay application it is to be borne in mind whether the assessee is having any prima facie case, whether balance of convenience lies in their favour or not, and thereafter, it is to be seen whether irreparable loss of revenue will be caused to either sides. The three basic principles have not been considered and he has asked them to make a pre-deposit of the entire demands on the plea that they have not pleaded financial hardship. Instead of going through the financial hardship first, while deciding the stay application, it is the duty of the Commissioner (Appeals) to consider whether the adjudicating authority is having the jurisdiction to decide the issue or not, which was not considered. Thereafter, the Commissioner (Appeals) has dismissed the appeal for non-compliance.
4. As the stay application has not been decided on merits of the case, therefore, the order of dismissal of the appeal is not sustainable in the eyes of law. Therefore, we set aside both the stay order as well as the impugned order and remand the matter back to the Commissioner (Appeals) to hear the appellant on their stay application first on merits and, thereafter, to decide the issue in accordance with law.
5. The appeal as well as the stay application are disposed of in the above terms.
(Dictated in Court) (P.R. Chandrasekharan) Member (Technical) (Ashok Jindal) Member (Judicial) */as 4