Customs, Excise and Gold Tribunal - Mumbai
Nav Kiran Packers (Pvt.) Ltd. vs Cce on 6 August, 2004
ORDER Jeet Ram Kait, Member (T)
1. For the purpose of hearing the appeal, appellant was required to predeposit an amount of Rs. 94,223/-. Since the issue involved in this case lies in a short compass, I am deciding the main appeal itself by waiving predeposit of duty.
2. Shri Manoj Arora, Director of M/s Nav Kiran Packers (Pvt.) Ltd. appears before me and submits that learned Commissioner (Appeals) has rejected both the stay application and the main appeal and has decided in one order without asking them to predeposit any amount. Had there been any non-compliance with the provisions of Section 35F in spite of notice then only the appeal could have been dismissed for non-compliance. I have heard the learned JDR Shri M.H. Shaikh.
3. I have gone through the impugned order and I find that the learned Commissioner (Appeals) in the concluding para has given his finding as under:
"Since the appellant had failed to produce the documentary evidence to satisfy the adjudicator about the duty paid character of the inputs on which they took credit and also the evidence to prove their availability in the stock on the relevant date, I do not find any reason to interfere with the order of the adjudicator, and reject the appeal. Since the balance of convenience strongly rests with the department as the appellants have not produced any evidence regarding the financial hardship of the company. Therefore, waiver of predeposit can not be considered. The appeal is, therefore, rejected without insisting for predeposit."
On the finding of the learned Commissioner (Appeals) it appeal's that he has on the one hand, rejected the appeal of the appellant and also simultaneously found that the waiver of predeposit cannot be considered and the appeal is, therefore, rejected without insisting for predeposit. This order clearly reflects non-application of mind on the part of the Commissioner (Appeals). Learned Commissioner (Appeals) is directed to first decide the stay application and then lake up the appeal on merits. The appeal is, thus, allowed by way of remand by setting aside the impugned order. Stay application also gets disposed of. Ordered accordingly.
(Dictated and pronounced in open Court)