Custom, Excise & Service Tax Tribunal
M/S Ballarpur Industries Ltd vs Commr. Of Central Excise, Customs & ... on 29 March, 2010
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, EAST REGIONAL BENCH : KOLKATA
SP-736/09
& S.T. Appeal No.235/09
Arising out of Order-in-Appeal No.54/ST/BBSR-I/2009 dated 10.7.2009 passed by Commr. (Appeals) of Central Excise, Customs & S.Tax, BBSR.
For approval and signature:
SHRI S. S. KANG, HONBLE VICE PRESIDENT
SHRI S. K. GAULE, 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 His Lordship wishes to see the fair copy
of the Order? :
4. Whether Order is to be circulated to the Departmental
Authorities? :
M/s Ballarpur Industries Ltd.
APPELLANT(S)
VERSUS
Commr. of Central Excise, Customs & S.Tax, BBSR I
RESPONDENT (S)
APPEARANCE Shri S. C. Mohanty, Advocate for the Appellant (s) Shri M. B. Bal, JDR for the Department CORAM:
SHRI S. S. KANG, HONBLE VICE PRESIDENT SHRI S. K. GAULE, HONBLE TECHNICAL MEMBER Date of hearing & decision : 29. 03. 2010 ORDER NO.. Per S. S. Kang :
Heard both sides. The applicants filed this application for waiver of predeposit of duty and penalty. The Commissioner (Appeals) directed the appellants to deposit an amount of Rs.10.00 lakh for hearing of the appeal. The appellants predeposited the amount by way of reversing the credit. The Commissioner (Appeals) did not accept the reversal of credit of predeposit and the Commissioner (Appeals) of the opinion that as predeposit should be made in cash or through PLA and dismissed the appeal for non-compliance to the condition of the stay order.
2. The contention of the appellants is that the Honble Allahabad High Court in the case of India Casting Co. Vs. CEGAT, New Delhi reported in 1998 (104) ELT 17 (All.), held that the assessee is entitled to make predeposit by way of reversal from the Cenvat Account.
3. Revenue relied upon the decision of the Honble Bombay High Court in the case of Suvidhe Ltd. reported in 1996 (82) ELT 177 (Bom) in respect of the issue of refund of predeposit.
4. We find that the issue before the Honble Bombay High Court in the case of Suvidhe Ltd. (cited supra) was in respect of refund of predeposit. Hence, the ratio of the decision is not applicable on the facts of the present case. The Honble Allahabad High Court in the case of India Casting Co. (cited supra), held that the assessee is entitled to make predeposit by way of reversal from the Cenvat Account. The appellants had deposited the amount by reversing the credit as per the Stay Order passed by the Commissioner (Appeals). Therefore, the predeposit of the remaining amounts of duty and penalty is waived and the stay petition is allowed.
5. The Commissioner (Appeals) has not decided the appeal on merit. As the deposit by way of reversing the credit is to be treated as compliance to the stay order passed by the Commissioner (Appeals), hence, the impugned order is set aside and the matter is remanded to the Commissioner (Appeals) to decide the appeal on merit after affording an opportunity of hearing to the appellants. The appeal is allowed by way of remand.
(Dictated and pronounced in the open Court)
Sd/ Sd/
( S. K. GAULE) ( S. S. KANG )
TECHNICAL MEMBER VICE PRESIDENT
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S.T.. Appeal No.235/09