Custom, Excise & Service Tax Tribunal
Cce, Indore vs M/S Gwalior Sugar Co. Ltd on 5 February, 2014
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL West Block No. 2, R.K. Puram, New Delhi 110 066. Principal Bench, New Delhi COURT NO. I DATE OF HEARING/DECISION : 05/02/2014. Excise Appeal No. 2860 of 2005 [Arising out of the Order-in-Appeal No. IND-I/142/2005 dated 30/05/2005 passed by The Commissioner (Appeals-I), Customs & Central Excise, Indore.] For Approval and signature : Honble Shri Justice G. Raghuram, President Honble Shri Rakesh Kumar, 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? 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 : Department Authorities? CCE, Indore Appellant Versus M/s Gwalior Sugar Co. Ltd. Respondent
Appearance Shri M.S. Negi, Authorized Representative (DR) for the appellant.
None for the Respondent.
CORAM : Honble Shri Justice G. Raghuram, President Honble Shri Rakesh Kumar, Member (Technical) Final Order No. 50663/2014 Dated : 05/02/2014 Per. Rakesh Kumar :-
The respondent are manufacturers of sugar. During 1992-1993 to 1996-1997 they had been allotted export quota of 2200.9 M.T. of sugar by the Government of India, Ministry of Food, Directorate of Sugar, New Delhi as per the provisions of Sugar Export Promotion Act, 1958. In terms of the provisions of Section 7 (1), 7 (2) and 7 (3) of this Act, additional Excise duty @ 45.55 per quintal was leviable on that much quantity of sugar dispatched from any factory for sale in India as is equal to the quantity falling short of export quota fixed for that factory. The respondent during the period of dispute did not export the sugar in terms of quota allotted to them and that much quantity was cleared for consumption in India. Accordingly, after issue of show cause notice, the Jurisdictional Assistant Commissioner vide order-in-original dated 31/08/01 confirmed the duty demand of Rs. 10,02,600/- under Rule 9 (2) of Central Excise Rules, 1944 readwith proviso to Section 11A (1) of the Central Excise Act and beside this, imposed penalty of Rs. 2,50,000/- on them under Rule 173Q of the Central Excise Rules. On appeal being filed to Commissioner (Appeals), the Commissioner (Appeals) vide order-in-appeal dated 29/08/2003 allowed the appeal. The Revenue filed an appeal before the Tribunal against the order dated 29/08/2003 of the Commissioner (Appeals) and the Tribunal vide final order No. 948/2004 dated 07/12/04 remanded the matter to the Commissioner (Appeals) to examine as to whether the appeal before the Commissioner (Appeals) had been filed in time with reference to the documents submitted by both the sides before the Tribunal and record his findings on the question of limitation and to decide the matter afresh after hearing both the sides. Accordingly, in remand proceedings before the Commissioner (Appeals), the matter was decided vide order-in-appeal dated 30th May 2005 by which the Commissioner (Appeals) held that the appeal is not time barred and has been filed in time in as much as the sending of the order-in-original by registered post on 03/09/04 and not by registered post with acknowledgement due (RPAD), as per the requirement of the law, cannot be treated as proper service of the order-in-original and that the Revenues claim that the another copy of the order had been served on the respondent on 10/12/02 is also not creditable as mere initials of the respondents employee on the covering letter is not the proof that the order had also been served on them, when the respondents claim is that no order-in-original was enclosed. Accordingly, the Commissioner (Appeals) held that the order-in-original was served on the respondent only on 14/2/03 and accordingly the appeal filed by them on 21/03/03 is within time. With regard to merits of the case, the Commissioner (Appeals) instead of examining the issue involved and giving his own findings, simply held that he is in full agreement with order-in-appeal dated 29/08/03 passed by his predecessor. Against this order of the Commissioner (Appeals), this appeal has been filed by the Revenue, wherein the Commissioner (Appeals)s order with regard to limitation has been challenged.
2. When this matter was called, none appeared for the respondent, though a notice had been issued to them well in time. In view of this, so far as the respondent are concerned, the matter is being decided ex-parte. Heard Shri M.S. Negi, the learned Departmental Representative, who assailed the impugned order by reiterating the grounds of appeal in the Revenues appeal.
3. We have considered the submissions of the learned DR and have gone through the records of this case. The Commissioner (Appeals) in the impugned order has only examined the issue as to whether the appeal against the order-in-original was filed before the Commissioner (Appeals) in time and has not gone into the merits of the case. On merits of the case, he has simply observed that he agrees with the findings recorded by his predecessor in the order-in-original dated 29/08/2003.
4. As regards the Commissioner (Appeals)s findings on the question as to whether the appeal had been filed within the limitation period, we find that it is not disputed that the dispatch of the order-in-original dated 31/08/2001 passed by the Assistant Commissioner was by registered post and not by registered post with acknowledgement due, which is the requirement of Section 37C. Therefore, sending of the order by registered post without acknowledgement due cannot be said to be the proper service of the order as per the requirement of law. As regards the Revenues plea that another copy of the order had been served on the respondent as it evident from the initials of the respondents employee on the covering letter dated 10/12/2002 of the department, forwarding the order, the plea of the respondent is that no order was enclosed with this letter. We agree with the findings of the Commissioner (Appeals) that from this letter, there is no indication that the person who had received this letter had also received the order-in-original dated 31/08/2008. In view of this, we agree with the Commissioner (Appeals)s findings that the appeal had been filed well within time and is not time barred.
5. However, we find that the Commissioner (Appeals) has not gone into the merits of the case and has simply observed that he agrees with the findings of his predecessor in the order-in-appeal dated 29/08/2003. The Commissioner (Appeals) during remand proceedings should have examined the issue on merits also as per the directions of the Tribunal in the remand order when he found that the appeal is within time. In view of this, the impugned order is set aside and the matter is remanded to the Commissioner (Appeals) for decision on merits. The Revenues appeal stands disposed of, as above.
(Operative part of the order pronounced in the open court.) (Justice G. Raghuram) President (Rakesh Kumar) Member (Technical) PK ??
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