Custom, Excise & Service Tax Tribunal
) Aravind Spinners Pvt. Ltd vs Commissioner Of Central Excise on 24 March, 2009
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
SOUTH ZONAL BENCH AT CHENNAI
Appeal Nos.E/PD/431/2008 to E/PD/446/2008 &
E/529/2008 to E/544/2008
[Arising out of Order-in-Appeal No.15-23/2008 dated 29.9.2008 and OIA No.24-30/2008 dt. 29.9.2008 passed by the Commissioner of Central Excise (Appeals), Madurai]
For approval and signature:
Honble Ms.JYOTI BALASUNDARAM, Vice-President
Honble Mr. P.KARTHIKEYAN, 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 should be released under Rule 27 of the
CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? :
3. Whether the Members wish to see the fair copy of
the Order? :
4. Whether Order is to be circulated to the Departmental
Authorities? :
1) Aravind Spinners Pvt. Ltd.
2) Mahaganapathy Tex
3) S.Navaneethakrishnan
4) G.Thillaikumar
5) Anbu Murugan Yarn Traders
6) V.Shanmugam
7) K.Swaminathan
8) S.P.Trading & Company
9) Bhagyalakshmi Yarn Traders
9) Thirumalai Mills
10) S.Navaneetha Krishnan
11) S.P.Trading Co.
12) G.Thillai Kumar
13) Sri Mahaganapathy Textiles
14) V.Shanmugam
15) K.Swaminathan
Appellant/s
Versus
Commissioner of Central Excise,
Tirunelveli
Respondent/s
Appearance :
Shri V.Ravindran, Consultant
Shri M.S.Krishnakumar, Advocate
Shri N.J.Kumaresh, SDR
For the Appellant/s
For the Respondent/s
CORAM:
Honble Ms.Jyoti Balasundaram, Vice-President
Honble Mr. P. Karthikeyan, Member (Technical)
Date of hearing : 24.3.2009
Date of decision : 24.3.2009
Final Order No.____________
Per Jyoti Balasundaram
For reasons recorded below, we waived predeposit of duty of Rs.25,83,957 confirmed against M/s.Arvind Spinners Pvt. Ltd. and Rs.30,74,816/- confirmed against M/s.Thirumalai Mills and penalties of equal amount imposed upon them as well as penalties imposed on the co-noticees/other appellants and proceed to decide the appeals themselves at this stage as the issue lies within a very narrow compass for the reason that the appeals have been dismissed for non-compliance with the statutory requirement of Section 35F of the Central Excise Act, 1944.
2) The case of the department is that M/s.Arvind Spinners Pvt.Ltd. and M/s.Thirumalai Mills who are engaged in the manufacture of cotton yarn cleared cone yarn which is dutiable in the guise of non-dutiable hank yarn to certain traders and grey cloth manufacturers situated in and around Somanur and Coimbatore. The evidence relied upon to come to the above conclusion is the statement of reeling units who stated that they had not received cone yarn for the purpose of reeling into non-dutiable hank yarn and also the evidence consisting of enquiries conducted with the transporters which showed that the cone yarn was not transported to the reeling units but taken to units in Somanur where the cone yarn was purchased.
3) The appellants on the other hand have adduced evidence in the form of A.R.3 certificates countersigned by the excise officer to show that the cone yearn had been sent for reeling into hank yarn in two reeling units and further they highlight the fact that after the Tribunals earlier remand order, the reeling units representatives, who had earlier stated that they had never converted cone yarn of the main appellant into hank yarn, retracted their statements. In these circumstances, we are of the view that the Commissioner (Appeals) ought to have examined the issue on merits without insisting on any predeposit. Since there is no finding by the Commissioner (Appeals) on the merits of the demand, we set aside the impugned orders and remit the cases for fresh decision to the Commissioner (Appeals) who shall pass fresh orders after examining the issue on merits and after extending reasonable opportunity of hearing to the assessees. Fresh orders shall be passed without insisting any predeposit. The appeals are thus allowed by way of remand
(Dictated and pronounced in open court)
(P.KARTHIKEYAN) (JYOTI BALASUNDARAM)
MEMBER (T) VICE-PRESIDENT
gs
ANNEXURE : Tabulated Statement
ANNEXURE
S.No.
Appellant Name
Duty
Demanded
(Rs.)
Penalty
Imposed
(Rs.)
1.
Aravind Spinners Pvt. Ltd.
25,83,957
25,83,957
2.
Mahaganapathy Tex
-
50,000
3. S.Navaneethakrishnan
-
50,000
4. G.Thillaikumar
-
1,00,000
5. Anbu Murugan Yarn Traders
-
50,000
6. V.Shanmugam
-
50,000
7. K.Swaminathan
-
50,000
8. S.P.Trading Company
-
50,000
9. Bhagyalakshmi Yarn Traders
-
50,000
10. Thirumalai Mills 30,74,816 30,74,816
11. S.Navaneethakrishnan
-
50,000
12. S.P.Trading Co.
-
50,000
13. G.Thillaikumar
-
1,00,000
14. Sri Mahaganapathy Tex
-
50,000
15. V.Shanmugam
-
50,000
16. K.Swaminathan
-
50,000 1 2