Custom, Excise & Service Tax Tribunal
M/S. Kesoram Spun Pipes & Foundries vs Commissioner Of Central Excise, Kol-Iv on 21 November, 2014
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE
TRIBUNAL, KOLKATA
EASTERN ZONAL BENCH: KOLKATA
Stay Petition No.SP-70573/13
&
Appeal No.Ex.Ap.70578/13
(Arising out of Order-in-Appeal No.12/KOL-IV/2013 dated 20.03.2013 passed by the Commissioner(Appeal-III) of Central Excise, Kolkata.)
FOR APPROVAL AND SIGNATURE
HONBLE DR. D.M. MISRA, MEMBER(JUDICIAL)
HONBLE DR. I.P. LAL, 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
Authorative report or not?
3. Whether Their Lordship wishes to see the fair copy
of the Order?
4. Whether Order is to be circulated to the Departmental
Authorities?
M/s. Kesoram Spun Pipes & Foundries
Applicant (s)/Appellant (s)
Vs.
Commissioner of Central Excise, Kol-IV
Respondent (s)
Appearance:
Miss Anup Banerjee, Advocate & Shri P.Ghosh, Consultant for the Appellant (s) Shri A.K.Biswas, Supdt.(A.R.) for the Respondent (s) CORAM:
Honble Dr. D.M. Misra, Member(Judicial) Honble Dr. I.P. Lal, Member(Technical) Date of Hearing:- 21.11.2014 Date of Pronouncement :- 21.11.2014 ORDER NO.FO/A/75635/2014 Per Dr. D.M. Misra.
1. This is an Application seeking waiver of pre-deposit of duty of Rs.18,04,721/- and equal amount of penalty imposed under Section 11AC of Central Excise Act, 1944.
2. At the outset Miss Anup Banerjee, Ld.Advocate for the Applicant submits that the Ld.Commissioner(Appeals) has not decided the issue on merit, but dismissed their Appeal on the ground of delay of 10 days in filing the Appeal before him. The Ld.Advocate submits that in their condonation application they have mentioned that they could not procure the documents in time as their factory was under lock out since 2nd May, 2008. He submits that the Ld.Commissioner(Appeals) has not considered their plea and rejected their Application seeking condonation of delay of 10 days. Arguing the case on merits Ld.Advocate submits that during the relevant period June, 2003 to December, 2007 they have cleared cast iron, spun pipes falling under heading No.7303.00 for execution of the drinking water pipeline project and availed exemption under Notification No.6/2002-CE. Necessary certificates from the District Collector were produced, however, it was not considered and the demand notice was confirmed against them denying the benefit of the said Notification.
3. The Ld.A.R. for the Revenue submits that the Ld.Commissioner(Appeals) has not decided the issue on merits but dismissed the Appeal on the ground of delay. He has no objection in remanding the case to the Ld.Commissioner(Appeals) in deciding the issue afresh.
4. After hearing both sides for some time we find that the Appeal itself could be disposed of at this stage. Accordingly after waiving the requirement of pre-deposit we take up the Appeal for disposal with the consent of both sides.
5. We find that the Ld.Commissioner(Appeals) has not decided the issue on merit, but dismissed the Appeal on the ground of delay of 10 days in filing the Appeal before him. Explaining the delay, the Appellant had submitted that due to lock out of the factory, necessary papers could not be obtained in time, resulting into the unintentional delay. We find force in the said submission of the Appellant. The delay of 10 days in filing the Appeal deserves to be condoned and accordingly condoned. Consequently the matter is remitted to the Ld.Commissioner(Appeals) to decide all the issues afresh on merits. Needless to mention a reasonable opportunity of hearing be granted to the Appellant. All issues are kept open. Appeal allowed by way of remand. Stay Petition disposed of.
(Pronounced and dictated in the open court.) SD/ SD/ (I.P.LAL) (D.M.MISRA) MEMBER(TECHNICAL) MEMBER(JUDICIAL) sm 3 Appeal No.Ex.Ap.70578/13