Custom, Excise & Service Tax Tribunal
M/S Manaksia Ltd vs Commissioner Of Central Excise, Kol.Ii on 22 November, 2013
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL,
EAST REGIONAL BENCH : KOLKATA
SP-70831/13
& Ex. Appeal No.70797/13
Arising out of O/A No.27/Kol.II/2013 dated 15.03.2013 passed by Commissioner of Central Excise (Appeals), Kolkata.
For approval and signature:
DR. D. M. MISRA, HONBLE JUDICIAL MEMBER
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 authoritative report or not? :
3. Whether His Lordship wishes to see the fair copy
of the Order? :
4. Whether Order is to be circulated to the Departmental
Authorities? :
M/s Manaksia Ltd.
APPELLANT(S)
VERSUS
Commissioner of Central Excise, Kol.II
RESPONDENT (S)
APPEARANCE Shri S. P. Siddharta , Consultant for the Appellant (s) Shri S. Chakraborty, Asstt. Commissioner (A.R.) for the Department CORAM:
DR. D. M. MISRA, HONBLE JUDICIAL MEMBER DATE OF HEARING & PRONOUNCEMENT : 22. 11. 2013 ORDER NO.FO/A/71133/2013 Per Dr. D. M. Misra :
This is an application for waiver of predeposit of duty of Rs.4,34,906/- and equal amount of penalty imposed under Rule 15 (2) of Cenvat Credit Rules, 2004 read with Section 11AC of the Central Excise Act, 1944.
2. At the outset, the ld.Consultant appearing for the applicant, has submitted that the ld. Commissioner (Appeals) has not decided the issue on merit but dismissed their appeal for non-compliance with the provisions of Section 35F of the Central Excise Act, 1944 as they failed to deposit the directed amount. On merit, the ld. Consultant has submitted that they have received the inputs availed credit and later exported the same as such by following the proper procedure laid down under Rule 18 of the Central Excise Rules, 2002 and obtained rebate on the amount of duty paid on such exported goods. The demand notice was issued to them for the differential amount of cenvat credit not reversed at the time of clearance of inputs as such for export. He submits that since the goods were exported and even if they had reversed the entire amount of cenvat credit, the same would have been available to them as rebate. Also, he submits that the export has been done under the supervision of the officers. Hence, at the time of export of inputs, the Department could have objected, hence the demand is barred by limitation. The ld.Consultant has further submitted that the Applicant Company is facing acute financial hardship, accordingly, predeposit of the said amount as directed by the ld. Commissioner (Appeals), would result in undue hardship. However, he has made an offer to deposit an amount Rs.1.00 lakh (Rupees one lakh only) and has prayed that the appeal be remanded to the ld.Commissioner (Appeals).
3. The ld. A.R. for the Department, has reiterated the findings of the ld.Commissioner (Appeals). He has submitted that since the ld. Commissioner (Appeals) has not decided the issue on merit, but dismissed their appeal for non-compliance with the provisions of Section 35F of the Central Excise Act, 1944, hence, he has no objection for remanding the case to him for fresh decision. However, he pleads that the Applicants should be put into terms.
4. After hearing both sides for some time, I find that the appeal itself could be disposed of at this stage. Consequently, with the consent of both sides, the appeal is taken up for final disposal.
5. I find that that undisputedly, the Appellant had exported the inputs as such, after discharging appropriate duty on the FOB value of goods. The claim of the Revenue is that the credit taken on the inputs be reversed, when the same is cleared for home consumption or export. On that premises, the differential duty between the cenvat credit taken and the duty paid at the time of export, has been demanded. The issue is debatable one and needs a close scrutiny. I find that the ld. Commissioner (Appeals) has not decided the issue on merit. Hence, the case needs to be remanded to the ld. Commissioner (Appeals) for deciding the issue a fresh on merit. I agree with the ld.A.R. for the Revenue that in remanding the matter to the ld.Commissioner (Appeals), the Appellant should be put into terms. I am of the opinion that the offer made by the ld. Consultant is reasonable for hearing their appeal. Accordingly, I direct the Appellant to deposit Rs.1.00 lakh (Rupees one lakh only) within a period of eight weeks from today and report compliance directly to the ld. Commissioner (Appeals). Since the ld.Commissioner (Appeals) has not decided the issue on merit, but dismissed for failure to predeposit the directed amount under the provisions of Section 35F of the Central Excise Act, 1944, I direct the ld. Commissioner (Appeals) to decide the issue on merit, after recording compliance of the above direction without insisting any further predeposit from the appellant. Accordingly, I set aside the impugned order and remit the matter to the ld. Commissioner (Appeals) for re-consideration of the case on merit. Needless to mention, a reasonable opportunity of hearing be granted to the appellant to present their case. All issues are kept open and both sides are at liberty to produce evidences in their support.
6. The appeal is allowed by way of remand. Stay petition is disposed off.
Dictated and pronounced in the open Court.
Sd/ (DR. D.M.MISRA) MEMBER (JUDICIAL) mm 4 Ex. Appeal No.70797/13