Custom, Excise & Service Tax Tribunal
M/S. Shital Internatioanl vs Cce, Ludhiana on 15 October, 2009
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL, West Block No. 2, R.K. Puram, NEW DELHI COURT No. III CENTRAL EXCISE APPEAL NO. 1841 of 2009-SM [Arising out of Order-in-Original No. IV(16)Tech/Hq/Jal/15/2007/8430 dated 24.3.2009 passed by the Asst. Commisioner, Central Excise, Chandigarh] Date of hearing/decision: 15th October, 2009 For approval and signature: Honble Mr. P.K. Das, 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 would be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? 3. Whether their Lordships wish to see the fair copy of the order? 4. Whether order is to be circulated to the Departmental authorities? M/s. Shital Internatioanl Appellant Vs. CCE, Ludhiana Respondent
Appearance:
Shri B.L. Narasimhan, Advocate for the appellants;
Shri S.K. Bhaskar, SDR for the respondent Coram:
Honble Mr. P.K. Das, Member (Judicial), FINAL ORDER NO._________________ dated __________ Per P.K. Das:
Heard both sides and perused the records.
2. The appellants filed this appeal against communication dated 24.3.2009 issued by the Asst. Commissioner (Technical) informing that the application for remission of duty was considered by the competent authority, however, the same was rejected since the appellants have not submitted the evidence that the duty element has not been claimed by the insurance company. The contention of the learned Advocate is that no order was issued by the competent authority and, therefore, the communication dated 24.3.2009 is not maintainable. He further submits that the Commissioner, Central Excise who is the competent authority has not passed any order. Hence, rejection of remission application by the competent authority as communicated by the Asst. Commissioner is not legal and is liable to be set aside. On the other hand, learned D.R. on behalf of the Revenue submits that no appeal is maintainable against communication dated 24.3.2009 of the Asst. Commissioner. In this regard learned Advocate drew attention of the Bench to the decision of the Tribunal in the case of Bhagwati Gases Ltd. vs. CCE, Jaipur-I, reported in 2008 (226) ELT 468 (Tri. Del.).
3. For proper appreciation of the case, relevant portion of the decision of the Tribunal in the case of Bhagwati Gases Ltd. (supra) is reproduced below:-
8.?It would thus appear that the question as to whether particular letter or communication amounts to order or decision so as to make the appeal maintainable would depend on facts of each case. If on consideration of the facts and circumstances, it is found that the order communicated by the impugned letter is such as to affect the rights of the party, the appeal should be maintainable. We put a pointed question to the learned Departmental Representative that if the appeal is held to be not maintainable, what would be the remedy of the appellant. The law does not countenance a situation where the person is rendered remediless. In the circumstances of the case, the only option available to the appellant was to approach the Commissioner and the Commissioner was obliged to decide the matter on merit. The order of the Commissioner holding the appeal to be not maintainable cannot, therefore, be sustained. Accordingly, we set-aside the order of the Commissioner and remit the matter back to him to pass a fresh order on merit in accordance with law as early as possible preferably within two months of receipt of a copy of this order.
4. I find that in the present case the Asst. Commissioner communicated the direction of the competent authority (i.e. Commissioner, Central Excise). In view of the above decision, communication dated 24.3.2009 of the Asst. Commissioner communicating the direction of the competent authority is set aside. The matter is remanded back to the Commissioner to pass a fresh order on merit in accordance with law. Needless to say that the Commissioner shall give reasonable opportunity of hearing to the appellants before passing the order. Appeal is allowed by way of remand.
(Dictated & pronounced in the Open Court.) (P.K. DAS) MEMBER (JUDICIAL) RK 4