Karnataka High Court
M/S Nucor Weld India Private Limited vs The Commissioner Of Central Tax on 16 November, 2022
Author: P.S.Dinesh Kumar
Bench: P.S.Dinesh Kumar
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CEA No. 70/2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF NOVEMBER, 2022
PRESENT
THE HON'BLE MR JUSTICE P.S.DINESH KUMAR
AND
THE HON'BLE MR JUSTICE T G SHIVASHANKARE GOWDA
CENTRAL EXCISE APPEAL NO.70/2019
BETWEEN:
1. M/S.NUCOR WELD INDIA PRIVATE LIMITED
REPRESENTED BY ITS MANAGING DIRECTOR
SHRI KAMLESH N DESAI
NO 9, KIADB, VEERASANDRA INDUSTRIAL AREA
ELECTRONIC CITY POST
BANGALORE - 560 100
2. SHRI KAMALESH N DESAI
MANAGING DIRECTOR OF
M/S NUCOR WELD INDIA PRIVATE LIMITED
NO.9, KIADB, VEERASANDRA INDUSTRIAL AREA
ELECTRONIC CITY POST
BANGALORE - 560 100 ...APPELLANTS
(BY SRI RAGHAVENDRA B HANJER, ADVOCATE)
AND:
THE COMMISSIONER OF CENTRAL TAX
FORMERLY KNOWN AS
THE COMMISSIONER OF CENTRAL EXCISE
Digitally signed by BANGALORE SOUTH COMMISSIONERATE
YASHODHA N
Location: High
CENTRAL REVENUE BUILDING
Court Of P B NO 5400, QUEEN'S ROAD
Karnataka
BANGALORE - 560 001 ...RESPONDENT
(BY SRI AKASH B SHETTY, CGSC)
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CEA No. 70/2019
THIS CENTRAL EXCISE APPEAL IS FILED UNDER SECTION 35G
OF THE CENTRAL EXCISE ACT, 1944 PRAYING TO (1) DECIDE THE
QUESTIONS OF LAW AS FRAMED HEREINABOVE IN FAVOUR OF THE
APPELLANT AND THEREBY ALLOW THE APPEAL IN FULL WITH
CONSEQUENTIAL RELIEF TO THE APPELLANT (2) SET ASIDE THE
IMPUGNED EX PARTE FINAL ORDER NOS.20550-20551/2017 DATED
26.04.2017 (ANNEXURE-A) AND THE MISC.ORDER NOS. 20224-
20225/2019 DATED 04.04.2019 (AT ANNEXURE-B) PASSED BY THE
CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL,
BENGALURU RESPECTIVELY IN APPEAL NOS.E/511/2003-DB AND
E/512/2003-DB AND MISC. APPLICATION NOS.E/ROA/20187/2019
AND E/ROA/20188/2019 ETC.
THIS CENTRAL EXCISE APPEAL, COMING ON FOR ORDERS,
THIS DAY, P.S.DINESH KUMAR J, DELIVERED THE FOLLOWING:
JUDGMENT
Heard Shri Raghavendra B.Hanjer, learned Advocate for the appellants and Shri Akash B.Shetty, learned Central Government Standing Counsel for the respondent.
2. This appeal has been filed belatedly after 668 days with the following prayers:
PRAYERS (1) Decide the questions of law as framed hereinabove in favour of the appellant and thereby allow the appeal in full with consequential relief to the appellant;
(2) Set aside the impugned ex-parte Final Order Nos.20550-20551/2017 dated 26/04/2017 (produced at Annexure-A) and the Misc. Order Nos.20224-20225/2019 dated 04/04/2019 (produced at Annexure-B) passed by the Customs, Excise and Service Tax Appellate Tribunal, Bengaluru (hereinafter referred to as Hon'ble Appellate Tribunal) respectively in appeal Nos.E/511/2003-DB and E/512/2003-DB -3- CEA No. 70/2019 and Misc. Application Nos.E/ROA/20187/2019 and E/ROA/20188/2019;
(3) Set aside the central excise duty demand of Rs.3,71,496/- confirmed along with interest and consequential penalty imposed on the appellants; and (4) Pass any such Order/s as this Hon'ble Court deems fit and proper in the facts and circumstances of the case."
3. Appellants have raised following substantial questions of law:
(a) Whether the impugned Misc. Order of the Hon'ble Appellate Tribunal is correct and legally sustainable in rejecting the Misc. Application on the ground of not amending the cause title without considering the fact of service of notice and also the merits of the case?
(b) Under the facts and circumstances of the case, whether the impugned Misc. Order of the Hon'ble Appellate Tribunal is correct and legally sustainable especially when the appeal itself were taken up for hearing only after almost fourteen years of filing of appeals?
(c) Whether the impugned Misc. Order of the Hon'ble Appellate Tribunal is correct and legally sustainable in rejecting the Misc. application without considering the various case laws cited by the Appellant during the course of arguments which clearly holds that the ex-parte final order can be recalled by invoking the provisions of Rule 41 of the CESTAT (Procedure) Rules?
(d) Whether the impugned Misc. Order of the Hon'ble Appellate Tribunal is correct and legally sustainable in rejecting the Misc. application holding that the final order was passed -4- CEA No. 70/2019 after considering the merits of the case even though the documents placed on by the Appellants were not at all considered?
(e) Whether the impugned ex-parte final order of the Hon'ble Appellate Tribunal is correct and legally sustainable in deciding the appeals on merits without giving sufficient opportunity to the Appellants even though the appeals were coming up for hearing after fourteen years of its filing?
(f) Whether the impugned ex-parte final order of the Hon'ble Appellate Tribunal is correct and legally sustainable in holding that the brand names 'NUCOR WELD' and 'KEMTRODE' does not belongs to the Appellants even though the evidences produced by Appellants proves to the contrary?
(g) Whether the impugned ex-parte final order of the Hon'ble Appellate Tribunal is correct and legally sustainable especially when the brand names namely, 'NUCOR WLED' and 'KEMTRODE' were registered with the Trademark Authority?
(h) Whether the impugned ex-parte final order of the Hon'ble Appellate Tribunal was right in upholding penalty without any findings in the impugned order?
4. The respondent has filed the objections to the application for condonation of delay.
5. Shri Raghavendra Hanjer, submits that the appeal before CESTAT1 was filed in the year 2003 and it came up for the first time on 26.04.2017. There was no representation on 1 Customs, Excise & Service Tax Appellate Tribunal -5- CEA No. 70/2019 behalf of the appellants before CESTAT on that date, and the CESTAT has disposed of the matter on merits. The appellants filed Misc.Application and the same has been disposed of on 04.04.2019. Reckoning from that date, this appeal is in time.
6. Shri Akash B.Shetty, opposing the application for condonation of delay submitted that the CESTAT has considered all aspects on merits and passed the order. The same does not call for any interference.
7. In para 2 of the order dated 26.04.2017, it is stated that none appeared on behalf of the appellants. Since the matter was old one, CESTAT had taken it for final decision on merits. While disposing the Misc.application, the CESTAT has noted the reason for non appearance of the appellants as change of address and not accepted the same on the ground that appellant had not informed to the Registry and accordingly dismissed the application.
8. It is also not disputed that the appeal was filed in the year 2003, but it came up for hearing for the first time in 2017. The appeal had remained on the file of CESTAT for 14 years and disposed of at the first hearing itself. In the -6- CEA No. 70/2019 circumstances, in our opinion, the appellants are entitled for a hearing on merits. Further reckoned from the date of disposal of the Misc. Application, this appeal is in time.
9. In view of the above, delay in filing this appeal condoned and the appeal is allowed.
10. The matter is remanded to CESTAT for reconsideration on merits. The appellants shall appear before CESAT without notice on 05.12.2022. Since we have remanded the matter to CESTAT for reconsideration, the questions of law would not arise for consideration and accordingly not answered.
11. In view of disposal of the appeal, all pending interlocutory applications stand disposed of.
No costs.
Sd/-
JUDGE Sd/-
JUDGE KSR List No.: 1 Sl No.: 25