Custom, Excise & Service Tax Tribunal
M/S. Dharampal Satyapal Ltd vs Commr. Of Central Excise & Service Tax on 13 January, 2014
CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
EAST REGIONAL BENCH : KOLKATA
S.P-70214/13,S.P-70257 & 70258/13
AND
Excise Appeal Nos. 70260/2013, 70308 & 70309/2013
(Arising out of the Order-in-Appeal No. 02 /GHY/CE (A) GHY/2013 dated-08.01.2013,03/GHY/CE(A)GHY/2013 dated-15.01.2013 and 04/GHY/CE(A)GHY/2013 dated-15.01.2013, passed by the Commissioner of Customs & Central Excise (Appeals), Guwahati)
For approval and signature of:
DR.D.M. MISRA, HONBLE JUDICIAL MEMBER
DR. I.P. LAL, HONBLE TECHNICAL MEMBER
=======================================================
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 should 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. Dharampal Satyapal Ltd.
APPELLANT(S)
VERSUS
Commr. of Central Excise & Service Tax
-Guwahati
RESPONDENT(S)
APPEARANCE
Sri T.R. Rastogi, Advocate
FOR APPELLANTS
Sri S. Misra, Addl. Commr. (A.R.)
FOR THE RESPONDENTS
CORAM:
DR.D.M. MISRA, HONBLE JUDICIAL MEMBER
DR. I.P. LAL, HONBLE TECHNICAL MEMBER
DATE OF HEARING & DECISION : 13.01.2014
ORDER NO.FO/A/75020-75022/2013
Per DR.D.M. MISRA
These three applications are filed seeking waiver of pre-deposit of duty of Rs.5.37 crores.
2. Ld. Advocate Shri T.R. Rastogi for the applicant has submitted that Ld. Commr. (Appeal) has not decided the issue on merit but dismissed their appeals on the ground that the same are not maintainable being not signed by the Principal Officer but by the authorized signatory of the applicants. The Ld. Advocate further submitted that against Rs.5.37 Crores, the Department has already recovered Rs.4.57 crores by way of appropriation from the sanctioned refunds. It is his submission that the Principal Officer has not been defined either in the Central Excise (Appeal) Rules, 2001 or under the Central Excise Act, 1944. It is his submission that by virtue of their Board of Directors resolution dated 22 December, 2010, Mr. Shantanu Kr. Sharma had been authorized to sign all documents for the company. The Ld. Advocate further submitted that before dismissing the appeals, the applicant was not given a chance informing the defects therein. The Ld. Advocate further submitted that said orders of Ld. Commissioner (Appeal) are not sustainable in law in view of this Tribunals decision in the case of Alfa Laval Separation Vs. Commr. of C. Ex., Pune-I reported in 2009 (14) S.T.R. 673 (Tri.-Mumbai) and Commr. of Customs (General) Vs. Cannon Shipping Co. Pvt. Ltd. reported in 2010 (250) E.L.T. 347 (Bom.).
3. The Ld. A.R. for the Revenue on the other hand submitted that the applicant did not appear during the course of personal hearing.
4. In the rejoinder, the Ld. Advocate submitted that only one chance of hearing was granted to them on 11/12/2012 and due to communication problem, they could not attend the hearing.
5. The Ld. A.R. for the Revenue fairly concedes that the Ld. Commr. (Appeal) has not decided the issue on merit.
6. After hearing both sides for some time, we find that the appeal itself could be disposed off at this stage. Accordingly, after waiving the requirement of pre-deposit, we take up the appeal for disposal with the consent of both sides.
7. We find that the Ld. Commr. has rejected the appeals on the ground that the applicant had failed to comply with the provisions of Sub-Section (2) of Section 35 of CEA, 1944 read with Rule 3 (2) ( c)of Central Excise (Appeal) Rules, 2001. In the impugned order, the Ld. Commr. (Appeals) has recorded that the appeal has not been signed by the Principal Officer of the company. From the record, we find that the appellant was not issued any notice pointing out the said defects in the appeal. Thus, they could not able to communicate the resolution of their Board of Director dated-22/12/2010,authorizing, among others, Mr. Santanu Kr. Sharma to sign all deeds/documents of the company. During the course of hearing, the Ld. Advocate also brought to our notice that the same Ld. Commr. (Appeal) had accepted the signature of Shri Sharma, subsequently, in their EA-I applications. We do not see any merit in the observation of the Ld. Commissioner (Appeal) in not accepting the authorized signatory as competent person for signing the documents under Rule 3 of the Central Excise Appeals Rules, 2001, in the absence of a definition in the Central Excise Act or Rules made thereunder as who could be the Principal Officer. Also, we find that before the Ld. Commissioner (Appeal), the Board of Directors resolution was not placed and hence no comment could be recorded by the Ld. Commissioner (Appeal on the said resolution. In the result, the impugned orders are set aside and the Appeals are remanded to the Ld. Commissioner (Appeal) to decide the issue afresh taking into consideration the Board of Directors resolution now placed before us. Needless to mention that reasonable opportunity of hearing be granted to the appellants. We make it clear that all issues are kept open. Appeals are allowed by way of Remand. S.P.s are disposed off.
(Dictated and Pronounced in the open court)
Sd/- 21/01/2014 Sd/- 20/01/2014
(DR.I.P.LAL) (DR. D.M. MISRA)
TECHNICAL MEMBER JUDICIAL MEMBER
k.b/-
Excise Appeal Nos. 70260/2013, 70308 & 70309/2013
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