Custom, Excise & Service Tax Tribunal
G K B R X Lenses Private Limited vs Commissioner Of Central Excise ... on 16 January, 2018
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SOUTH REGIONAL BENCH AT HYDERABAD BENCH - SM COURT - I Appeal(s) Involved: E/30992/2017-SM (Arising out of Order-in-Appeal No. VIZ-EXCUS-001-APP-032-17-18 dated 12/05/2017 passed by Commissioner of Central Excise, Visakhapatnam ) G K B R X Lenses Private Limited Appellant(s) Versus Commissioner of Central Excise Visakhapatnam - G S T Respondent(s) Appearance: Mr G. Prahlad, Adv for the Appellant. Mr. Guna Ranjan, A.R. for the Respondent. CORAM: HON'BLE Mr. M.V.RAVINDRAN, MEMBER (JUDICIAL) Date of Hearing: 16/01/2018 Date of Decision: 16/01/2018 Final Order No. A/ 30003 / 2018 [Order per: M.V.RAVINDRAN. ] .
This appeal is directed against Order-in-Appeal No. VIZ-EXCUS-001-APP-032-17-18 dated 12/05/2017. Heard both sides and perused the records.
2. On perusal of records it transpires that the 1st Appellate authority has dismissed the appeal filed by the appellant by the impugned order holding that the mandatory pre-deposit having not been paid within the prescribed period of filing the appeal, the subject appeal does not merit admission as mandated by statutory provisions under Section 35 F (i) of Central Excise Act 1944. After stating so, in paragraph No 4.5 of the impugned order the 1st Appellate Authority dismissed the appeal.
3. Learned counsel submits that the matter was disposed of by the Commissioner (Appeals) on 12.5.2017. They had predeposited the amount as required on 10.1.2017 and the issue is covered by the judgement of Honble High Court of Madras in the case of Classic Builders (Madras) Pvt Ltd Vs CESTAT Chennai [2016(42)STR 668 (Mad).
4. Learned A.R. submits that the appellant had not deposited the mandatory amount of 7.5% while filing the appeal and had paid it subsequently after the prescribed period for filing of appeal expired and the findings the 1st Appellate Authority are reiterated.
5. It is noticed that on 12.05.2017, when the 1st Appellate Authority passed the impugned order dismissing the appeal, holding that the amount of predeposit as required under Section 35 F(i) has been paid belatedly, it is undisputed that 7.5% of the confirmed duty stands paid by the appellant on 10.1.2017 i.e. before the impugned order is passed. I find strong force in the contentions raised by the learned counsel that the judgement of the Honble High Court of Madras in the case of Classic Builders (supra) covers the proposition in favour of the appellant herein. Their Lordships in paragraph No. 10 have recorded the following legal reasoning:
10.?From the decisions relied upon by the learned counsel for the Assessee, it is clear that it is not for the Tribunal to state that the Tribunal has no jurisdiction to hear it, but it has no jurisdiction to refuse to hear it, once the procedural requirement of pre-deposit is complied with. The legal reasoning, in support of that, runs as follows :
(a) When the Act or the Rules in question do not specifically prohibit restoration of an appeal, dismissed on the ground of non-deposit of the amount, the Tribunal certainly has the power and jurisdiction to recall its earlier order, if the ends of justice require such a course of action.
(b) When Rule 20 provides for restoration of appeal in case when the appeal is dismissed for default, there is no reason as to why the power of restoration should not be exercised in case of non-compliance with the provision for pre-deposit.
(c) even if no pre-deposit is made, the appeal may not be heard, but the dismissal of the appeal for non-compliance of pre-deposit does not permit the appellate authority to refuse to restore the appeal upon compliance being shown.
(d) under Rule 41, the CESTAT has wide powers to prevent abuse of its process and to secure the ends of justice.
(e) since right to appeal is a statutory right and pre-deposit requirement under Section 129E of the said Act are only in nature of procedural requirements, but for delay in meeting the pre-deposit requirement, the primary right of appeal cannot be extinguished.
10.1?From the case law discussed, it is apparent that the Tribunal cannot deprive the substantive right of the party to prefer the appeal on the mere ground that there is violation of procedure. Therefore, the order of the Tribunal, dismissing the restoration application and the order dismissing the appeal itself are liable to be set aside.
10.2?Considering the claim of availability of merits, the quantum of tax under challenge, and the financial distress pleaded, it is just and necessary that the appellant should be allowed to present her case on merits in the appeal. It is ordered accordingly. As can be seen from the above reproduced ratio, this appeal needs to be restored. In view of the foregoing, the impugned order is set aside and the appeal is restored to the file of the 1st Appellate Authority, with a direction to dispose of the same on the merits of the case after following the principles of natural justice.
6. Appeal disposed of by way of remand to Commissioner (Appeals).
(Order pronounced and dictated in open court) M.V.RAVINDRAN MEMBER (JUDICIAL) Neela Reddy 4