Satyam Iron & Steel Co. Pvt. Ltd vs The Commissioner Of Central Excise & ... on 6 February, 2020

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Calcutta High Court

Satyam Iron & Steel Co. Pvt. Ltd vs The Commissioner Of Central Excise & ... on 6 February, 2020

Bench: I. P. Mukerji

OD3
                        CEXA No. 80 of 2018
                        GA No. 1898 of 2018
                 IN THE HIGH COURT AT CALCUTTA
              SPECIAL JURISDICTION (CENTRAL EXCISE)
                          ORIGINAL SIDE


                                      Satyam Iron & Steel Co. Pvt. Ltd.
                                                                Versus
                       The Commissioner of Central Excise & Service Tax



Before:
The Hon'ble Justice I. P. MUKERJI
            And
The Hon'ble Justice MD. NIZAMUDDIN
Date: 6th February 2020

                                                              Appearance:
                                          Mr. J. P. Khaitan, Sr. Advocate
                                              Mr. Ananda Sen, Advocate
                                                Mr. Dipak Dey, Advocate
                                                         for the appellant

      The Court: This appeal under section 35G of the Central Excise

Act, 1944 against the order of the tribunal dated 15th January 2018 is

admitted on the following substantial questions of law.

      1. Whether on the facts and in the circumstances of the case, the

         central excise duty can be demanded with reference to the

         installed capacity when the finished goods are not notified

         under section 3A of the Central Excise Act, 1944 and there is

         no material to show any unrecorded manufacture or clearance

         of the finished goods?

      2. Whether on the facts and in the circumstances of the case the

         impugned order of the tribunal upholding the demand made on

         the above basis was perverse?

      As the respondent is not appearing, the advocate-on-record for the

appellant is directed to cause to be issued by the department a notice of appeal and cause service thereof on the respondent by 28th February 2020. Let informal paper books be filed by the advocate-on-record for the appellant by 16th March 2020, serving a copy thereof upon the advocate- 2 on-record for the respondent at least seven days before the date of hearing of the appeal.

List the appeal for hearing on 8th April 2020. In the application (GA No. 1898 of 2018), stay of the impugned order of the tribunal is sought. An affidavit of service is on record evidencing service of the application upon the respondent in July, 2018.

We are minded to give an opportunity to the respondent to contest the stay application.

By the impugned order of the tribunal the matter was remanded to the Commissioner to adjudicate the duty demand on the basis that the production was to be taken according to the declared annual capacity and that the production during the period of closure of the manufacturing unit or kiln calculated on the above basis was to be deducted. The appellant is aggrieved by this order.

Mr. Khaitan submits that if the above questions of law are answered in favour of the assessee, any adjudication by the commissioner at this stage would be highly prejudicial to his client.

In those circumstances, we stay the order of the tribunal for a limited period till 12th February 2020 or until further orders, whichever is earlier.

List the appeal and the application on 10th February 2020 for hearing the parties on the continuance of the stay order.

The advocate-on-record for the appellant is to forthwith communicate the gist of this order to the respondent.

(I. P. MUKERJI, J.) (MD. NIZAMUDDIN, J.) R. Bose

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