Custom, Excise & Service Tax Tribunal
M/S Gkn Sinter Metals Ltd vs Commissioner Of Central Excise, Goa on 4 March, 2011
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
WEST ZONAL BENCH AT MUMBAI
COURT NO. I
Application No. C/COD/2042/09 in Appeal No. C/942 & 783/09
C/S/1509 & 1307/09
(Arising out of Order-in-Appeal No. GOA/CUS/MP/24 & 25/2009 dated 24.04.2009 passed by the Commissioner of Central Excise & Customs (Appeals), Panaji, Goa).
For approval and signature:
Honble Shri P.G. Chacko, Member (Judicial)
Honble Shri Sahab Singh, Member (Technical)
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1. Whether Press Reporters may be allowed to see : No 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 : Yes CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? 3. Whether their Lordships wish to see the fair copy : Seen of the order? 4. Whether order is to be circulated to the Departmental : Yes authorities? ====================================================== M/s GKN Sinter Metals Ltd. Appellants Vs. Commissioner of Central Excise, Goa Respondent Appearance: Shri Abhijeet A. Desai Advocate for Appellants Shri P.K. Agarwal Jt. CDR for Respondent CORAM: SHRI P.G. CHACKO, MEMBER (JUDICIAL) SHRI SAHAB SINGH, MEMBER (TECHNICAL) Date of Hearing: 04.03.2011 Date of Decision: 04.03.2011 ORDER NO. WZB/MUM/2011 Per: P.G. Chacko
The captioned appeals were filed against the order passed by the Commissioner (Appeals) on 24.4.2009 dismissing two appeals of the assessee for non-deposit of an amount of Rs.40 lakhs, which had been ordered to be pre-deposited under Section 129E of the Customs Act, 1962 vide stay order dated 13.3.2009. One of the appeals is delayed by 41 days and one of the applications before us seeks condonation of this delay. The remaining applications before us seek waiver of pre-deposit and stay of recovery in respect of the amounts of Customs duty demanded by the original authority.
2. When these matters came up before us on the last occasion, the learned Jt. CDR raised a preliminary objection. Referring to the provisions of Sections 128A, 129A and129E of the Customs Act, 1962 and relying on the Hon'ble Kerala High Courts judgment in the case of Mohd. Fariz and Co. Vs. Commissioner of Customs 2010 (260) ELT 29 (Ker) and the Tribunals order in Dewas Die Castings Pvt. Ltd. Vs. Commissioner of Central Excise, Bhopal 2000 (116) ELT 663 (Tri), the learned Jt. CDR argued that the appeals were not maintainable. Incidentally, he also submitted that he would not oppose the application for condonation of delay. The learned Counsel for the appellants, at that time, sought adjournment as he was not well-prepared to contest the plea of non-maintainability. Accordingly, the matter is arising before us today.
3. In the absence of the Counsel for the appellants, the learned advocate Shri Prakash Shah, as amicus curie, mentions that there are judgments of the Hon'ble Supreme Court to the effect that such appeals are maintainable. Fairly enough, the learned Jt. CDR himself has produced copies of two judgments of the Hon'ble Supreme Court, one of which is in the case of Commissioner Vs. Smithkline Beecham Co. Health Co. Ltd. 2003 (157) ELT 497 (SC) and the other in the case of Collector of C. Ex., Calcutta Vs. Alnoori Tobacco Products 2004 (170) ELT 135 (SC).
4. A Civil Appeal filed by the Commissioner of Central Excise, Chandigarh in the case of Smithkline Beecham Co. Health Co. Ltd. was against an order passed by this Tribunal against the Revenue on merits in an appeal filed by the assessee against the order of the Commissioner (Appeals) dismissing the assessees appeal (filed against an adverse order of the original authority) on the sole ground of non-compliance with a direction for pre-deposit. The Hon'ble Supreme Court held thus:-
The only question before the Tribunal was whether pre-deposit was required or not. The Tribunal has chosen to go into the merits and decided the appeal on merits also. This should not have been done. On this basis, with the concurrence of both sides, their Lordships remanded the case to the Commissioner (Appeals) after dispensing with the requirement of pre-deposit. In the Civil Appeal filed by the department against the Tribunals decision in the case of Alnoori Tobacco (supra), again the Hon'ble Supreme Court found fault with this Tribunal by observing that the Tribunal, instead of considering the relevant aspects, proceeded to decide the assessees appeal on merits in their favour without examining the propriety of dismissal of the assessees appeals (filed against orders of adjudication) by the Collector (Appeals) on the ground of non-compliance with the requirements of Section 35F of the Central Excise Act. Both the decisions of the apex court would go to indicate beyond doubt that the order passed by Commissioner (Appeals) dismissing a partys appeal on the sole ground of non-compliance with section 35F of the Central Excise Act/Section 129E of the Customs Act without considering the merits of the case is appealable to this Tribunal and that, in such an appeal, the Tribunal has to examine the propriety of the appellate Commissioners decision. The apex courts judgments cited by amicus curie and produced by the learned Jt. CDR are enough for us to overrule the preliminary objection raised by the learned Jt. CDR. It is ordered accordingly.
5. As already indicated, Appeal No. C/942/09 is delayed by 41 days. In the relevant application, the appellants state that they had filed one appeal (C/783/09) against the order of the Commissioner (Appeals) and thought that a separate appeal might not be necessary against the same order. It is further stated that Appeal No. C/942/09 was filed as soon as they were advised by the Assistant Registrar to file a supplementary appeal considering the fact that the order of the Commissioner (Appeals) had been passed in two separate appeals filed against two separate orders-in-original. The learned Counsel has explained these circumstances to our satisfaction. The delay is therefore condonable, particularly when the plea is not opposed. The COD application stands allowed.
6. The stay applications filed by the appellants in the two appeals claim prima facie case on merits and pray for waiver of pre-deposit and stay of recovery. The learned Counsel for the appellants reiterates the averments contained in these applications. The learned Jt. CDR opposes these applications by submitting that the appellants had not even stated only reason before the Commissioner (Appeals) for waiver and stay under section 129E. After considering the submissions, we are of the view that, in the circumstances of this case, the appeals have to be finally disposed of at this stage. Accordingly, after dispensing with pre-deposit, we take up the appeals for final disposal.
7. These appeals are directed against the appellate Commissioners order dated 24.4.2009. By an interim order, the learned Commissioner (Appeals) had directed the appellant to pre-deposit an amount of Rs.40 lakhs towards total demand of duty amounting to over Rs.1.67 crores confirmed against the assessee. That order was passed on 17.3.2009. In that order, the appellate authority reproduced the stay application of the assessee reading thus: -
We request you, in the meanwhile to stay the recovery proceedings for the duty initiated by the Assistant Commissioner of Customs, CFS, Pimpri, Pune, till the appeal is decided. Nothing else was averred or requested by the assessee in the stay application before the Commissioner (Appeals). Nevertheless, the learned Commissioner (Appeals) examined the various aspects of the matter including undue hardships though there was no plea of hardships in the stay application. The appellate authority referred to relevant decisions of the Hon'ble Supreme Court and this Tribunal on the factors to be considered under Section 129E of the Customs Act and Section 35F of the Central Excise Act for waiver of pre-deposit. After careful examination of all the relevant aspects, the learned Commissioner (Appeals) directed the above pre-deposit to be made by the assessee. Accordingly, an amount of Rs.40 lakhs was required to be deposited before 17.4.2009. In the above order of the Commissioner (Appeals), it was also notified that the case on merits would be heard on 20th April or 21st April, 2009 at 12.30 p.m., subject to pre-deposit. It was also made clear therein that, in the absence of evidence of pre-deposit, the appeal would be dismissed ex-parte. The party did not make any pre-deposit. Consequently, their appeals came to be dismissed for want of compliance with Section 129E of the Customs Act vide Order-in-Appeal dated 24.4.2009, the impugned order.
8. We have also examined the records of the case and we have found enough material in support of the prima facie view taken by the Commissioner (Appeals). The appellant must deposit the aforesaid amount for the purpose of Section 129E of the Customs Act, whereupon the learned Commissioner (Appeals) will dispose of the assessees appeals on merits in accordance with law and the principles of natural justice. In order to enable the learned Commissioner (Appeals) to do so, we set aside the impugned order and allow these appeals by way of remand with a direction to the appellant to pre-deposit Rs.40 lakhs within four weeks from today and report compliance to the Commissioner (Appeals) so that the appellate authority can take up the assessees appeals for final disposal on merits.
(Dictated and pronounced in Court)
(Sahab Singh) (P.G. Chacko) Member (Technical) Member (Judicial)
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