Custom, Excise & Service Tax Tribunal
(I) M/S. Yash International vs The Commissioner Of Customs & Central ... on 15 September, 2011
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH AT BANGALORE COURT - I Appeal No: E/Stay/1423 & 934/2010 in E/2351 & 1638/2010 (Arising out of Order-in-Appeal No: 64/2010 (H-IV) CE dated 15.6.2010 & Order-in-Appeal No: 61/2010 (H-IV) CE dated 15.6.2010 passed by the Commissioner of Customs, Central Excise & Service Tax (Appeals-II), Hyderabad.) Date of Hearing: 15.09.2011 Date of decision: 15.09.2011 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 their Lordship wish to see the fair copy of the Order? 4. Whether Order is to be circulated to the Departmental authorities? (i) M/s. Yash International (ii) Ritesh Naredi, Managing Partner Appellant Vs. The Commissioner of Customs & Central Excise Hyderabad-IV Commissionerate Hyderabad. Respondent
Appearance For the appellants : Shri Ram Reddy, Advocate For the respondents : Shri Ganesh Havannur, SDR CORAM SHRI P. G. CHACKO, HONBLE MEMBER (JUDICIAL) SHRI M. VEERAIYAN, HONBLE MEMBER (TECHNICAL) STAY ORDER Nos._______________________2011 FINAL ORDER Nos._______________________2011 Per P. G. Chacko (Oral), These applications seek waiver of pre-deposit and stay of recovery in respect of the outstanding dues. After examining the records and hearing both sides, we are of the view that the appeals are also to be finally disposed of at this stage. Accordingly, after dispensing with pre-deposit, we take up the appeals for disposal.
2. Aggrieved by an order of the Additional Commissioner demanding duty with interest thereon, imposing penalties, etc., M/s. Yash International (a partnership firm) and their Managing Partner had preferred appeals to the Commissioner (Appeals) and also filed, therein, applications for waiver of pre-deposit. These applications were disposed of by the Commissioner (Appeals) on 13.5.2010 directing the firm to pre-deposit an amount of Rs.25 lakhs and its Managing Partner to pre-deposit an amount of Rs.16 lakhs and report compliance by 28.5.2010, which time was later extended to 10.6.2010. The appellants did not deposit any amount within the stipulated period. Consequently their appeals came to be dismissed for non-compliance with Section 35F of the Central Excise Act and hence the present appeals, one by the firm and the other by the Managing Partner.
3. After examining the records and hearing both sides, we note that the direction for pre-deposit was issued by the learned Commissioner (Appeals) even after noting that an amount of Rs.25 lakhs paid by the assessee prior to issuance of the show-cause notice had been appropriated towards penalty by the lower authority. Learned counsel for the appellants submits that the entire amount of duty, education cess and interest were paid along with 25% of the sum of duty and cess towards penalty within 30 days from the date of receipt of the show-cause notice. It is further submitted that, they, by mistake, omitted to furnish these particulars to the Commissioner (Appeals). However these particulars have been furnished to this Tribunal, which we have perused also. We find that the following payments were made by the assessee during the period 13.9.2007 to 7.10.2008.
(i) Duty Rs.25,75,862/-
(ii) Education Cess Rs.274/-
(iii) Interest on the above Rs.11,75,849/-
(iv) Penalty Rs.6,44,034/-
Copies of the relevant challans are also available on record. Learned SDR has not disputed these facts.
4. Considering the substantial payments already made by the assessee, we take the view that no further pre-deposit needs to be made by the assessee or the Managing Partner for purposes of Section 35F of the Central Excise Act. Accordingly, after setting aside the impugned order, we allow these appeals by way of remand with a request to the Commissioner (Appeals) to dispose of the appeals of the parties on merits without insisting on any pre-deposit and after giving them a reasonable opportunity of being heard. The stay applications also stand disposed of.
(Pronounced and dictated in Open Court) (M. VEERAIYAN) Member (Technical) (P. G. CHACKO) Member (Judicial) rv ??
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