Custom, Excise & Service Tax Tribunal
Yes vs Represented By : Sh. D.K. Trivedi (Adv.) on 9 May, 2013
CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL, West Zonal Bench, Ahmedabad COURT-II Appeal No. E/10769/2013-EX[SM] Arising out of OIA No. 284/2012 (Ahd-II)CE/AK/Commr(A)/Ahd, dt.12.01.13 Passed by Commissioner of Central Excise & Customs (Appeals), For approval and signature : Hon'ble Mr. H.K. Thakur, Member (Technical) 1 Whether Press Reporter may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982? No 2 Whether it should be released under Rule 27 of CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? 3 Whether their Lordships wish to see the fair copy of the Order? Seen 4 Whether Order is to be circulated to the Departmental authorities? Yes Appellant (s) : M/s S.S Strip Pvt Ltd. Represented by : Sh. D.K. Trivedi (Adv.) Respondent (s) : CCE, Ahmedabad-II
Represented by : Sh. J. Nagori (A.R.) CORAM :
Hon'ble Mr. H.K. Thakur, Member (Technical) Date of Hearing /Decision:09.05.13 ORDER No. _____________ /WZB/AHD/2013 Per : Mr. H.K. Thakur;
This appeal has been filed by the appellant, along with stay application, against OIA No. 284/2012 (Ahd-II)CE/AK/Commr(A)/Ahd dated 12.01.2013 passed by Commissioner (A), Ahmedabad. As per stay order dated 13.04.2012 Commissioner (A) asked the appellant to deposit 50% amount of the duty confirmed and penalty imposed as pre-deposit under section 35-F of the Central Excise Act, 1944 within fortnight. Appellant expressed financial hardship and did not made the pre-deposit. Accordingly the appeal filed by the appellant before Commissioner (A) was dismissed for non-compliance under OIA dated 02.01.2013.
2. Heard both sides on stay application as well as appeal.
3. Shri D.K. Trivedi, Advocate of the appellant argued that appellant was facing acute financial hardship, because as per their balancesheet they are incurring a loss of Rs. 90.40 Lakhs. It was argued that appellant has also surrendered the Central Excise Registration to the department on 02.05.2012 due to acute financial hardship. It was requested that due to acute financial hardship they could not make the pre-deposit ordered by Commissioner (A).
4. On merits appellant argued that notification No. 17/2007-CE dated 01.03.2007 was issued in supersession of notification No. 34/2001-CE dated 28.06.2001. It was argued that as per the judgment of the CESTAT, Delhi in the case of Acme Industries Vs. CCE, Jaipur-II [2011 (269) E.L.T 523 (Tri- Del), pronounced with respect to notification No. 34/2001-CE dated 28.06.2001, the benefit of abatment of duty with respect to the machines not used for manufacture has been allowed. It was his argument that Commissioner (A) has not decided the issue on merits, therefore, the case may be remanded to him for denovo consideration on merits without insisting for pre-deposit.
5. Ld. A.R. on the other hand argued that there is no provision for abatment of duty with respect to the machines not in working condition as per notification No. 17/2007/CE dated 01.03.2007.
6. After hearing rival submissions and perusal of case records it is observed that intimation of closure of Cold Rolling Machines was given by the appellant to the department vide order dated 27.12.2012 as brought out in para 3 of the OIO dated 15.02.2012. It is observed from para 6 of the judgment of CESTAT, Delhi in the case of Acme Industries Vs. CCE, Jaipur-II (supra) that the spirit of the law laid down is that those Cold Rolling Machines which are not in use should not be subjected to duty under a compounded levy scheme. Once the appellant has intimated the department regarding closure of certain machines it was expected that concerned Jurisdictional Officer will take suitable steps to ensure that the machines intimated to be closed by the appellant cannot be put to use. Prima facie appellant seems to have a case on merits in view of the decision given by CESTAT, Delhi in the case of Acme Industries Vs. CCE, Jaipur-II (supra). Appellant has also shown financial hardships in payment of pre-deposit ordered by Commissioner (A) and the unit is also lying closed and registration surrendered. Therefore, after allowing stay application, the appeal itself is taken for disposal and the matter is remanded back to Commissioner (A) with a direction to hear and dispose of the appeal filed by the appellant without insisting for any pre-deposit. Needless to say that the appellant should be given a hearing before passing suitable orders on merits. It is made clear that all the issues are kept open without expressing any opinion on the merits of the case.
7. Appeal is allowed by way of remand.
(Pronounced in the Court) (H.K. Thakur) Member (Technical) .NR 2