Custom, Excise & Service Tax Tribunal
M/S. Mahendra Sponge And Power Ltd vs C.C.E & S.T., Raipur on 6 August, 2013
CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, NEW DELHI, PRINCIPAL BENCH NEW DELHI,
COURT NO. IV
Date of Hearing: 06.08.13
Date of Decision:
Stay Application No. E/Stay/59023/2013 in
Appeal No. 58367/2013-EX[SM]
[Arising out of Order-In-Appeal No.101/RPR-I/2013 dt.03.04.2013, passed by Commissioner (Appeal) Central Excise & Customs, Raipur]
For approval and signature:
Honble Sh. Rakesh Kumar, Technical 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 Their Lordships wish to see the fair copy of the Order?
4
Whether Order is to be circulated to the Departmental authorities?
M/s. Mahendra Sponge And Power Ltd. Appellant
Vs.
C.C.E & S.T., Raipur Respondent
Present: - Sh. Manish Saharan, Advocate - for the appellant Sh. A.K.Jain, Jt.CDR - for the Respondent Coram: Rakesh Kumar Member (Technical) FINAL ORDER NO: 57334 /2013 Per Rakesh Kumar:-
Though this matter is listed for hearing of the stay application only, after hearing this matter for such time, the Bench was of the view that the matter can be taken up for the final disposal. Accordingly the requirement of pre-deposit is waived and the matter is heard for final disposal.
2. The allegation against the appellant is that the 100 MT of sponge iron involving duty of Rs.4,95,014/-was clandestinely without payment of duty . On this basis, after issue of Show Cause Notice, the duty demand of above mentioned amount was confirmed against the appellant by the Assistant Commissioner along with interest besides imposition of equal amount of penalty. On appeal being filed to the Commissioner (Appeal) along with stay application against this order of Assistant Commissioner, the Commissioner (Appeals) in respect of stay application directed the appellant to deposit the entire duty amount. The appellant complied with the directions of the Commissioner (Appeals) in the stay order by debiting the directed amount in the Cenvat Credit account and reported the compliance to the Commissioner Central Excise (Appeals). However, the Commissioner (Appeals) vide his final order in appeal dt 03.04.2013 dismissed the appeal for non-compliance on the ground that the amount of pre-deposit should have been paid in cash, .i.e. by debiting the PLA and it could not be deposited by debiting Cenvat Credit Account and in this regard he relied upon the Tribunals judgment in the case of Fibre Glass Insulation Vs. CCE reported in 2001(127) ELT-591(CEGAT). Against this order of the Commissioner (Appeals) this appeal has been filed.
3. Heard both the sides.
4. Sh. Manish Saharan, ld. counsel for the appellant, pleaded that the pre-deposit of the directed amount for compliance of the stay order can be made by the debiting the Cenvat Credit Account also and in this regard he relies upon the Tribunals Judgments in the cases of Nicco Corporation Ltd. Vs. Custom, Excise & Service Tax reported in 2012 (279) ELT- 567 (Tri.-Kolkata) and Minwool Rock Fibres Ltd. Vs. Commissioner of Custom & Central Excise, Hyderabad reported in 2013 (290) ELT-112(Tri.-Bang.) wherein it has been held that debiting of pre-deposit in Cenvat Credit Account in pursuance of stay order is recognized as valid pre-deposit under section 35F. He, therefore, pleaded that the matter may be remand to the Commissioner (Appeals)s decision for merits.
5. Sh. A.K.Jain, learned Jt. CDR, defended the impugned order by reiterating the findings of the Commissioner (Appeals).
6. I have considered the submissions from both the sides and perused the records. The only point of the dispute in this case is as to whether the amount of pre-deposit ordered in the stay order for compliance with provisions of Section 35F can be deposited by the debiting the Cenvat Credit Account . On this point I find that though the Commissioner (Appeals) has relied upon the Tribunals judgment in the case of Fibre Glass Insulation (Supra), the Tribunal in two other cases of Nicco Corporation Ltd.(Supra) & Minwool Rock Fibres Ltd.(Supra) has taken contrary view and has clearly held that pre-deposit made by the way of debiting the Cenvat Credit Account is permitted. The decision of the Tribunal in case of Minwool Rock Fibers Ltd. (Supra) and Nicco Corporation Ltd. (Supra) is in accordance with the decision in case of Birla Yamaha Ltd. reported in 1996 (83) ELT-396 (Tri.) which has not been considered in the case of M/s Fibre Glass Insulation (Supra). The judgment in case of Birla Yamaha Ltd. (Supra) is of a bench of three members. In view of this I hold that the impugned order is not correct and the appellant would have to be treated as having complied with the direction of pre-deposit in the stay order passed by the Commissioner (Appeals) and the appeal merits be heard on merits. The impugned order is, therefore, set aside and the matter is remanded to Commissioner (Appeals) for decision on merits. The stay application and appeal stands dispose of.
[Order dictated in the open court] (Rakesh Kumar) Member (Technical) S.Kaur 1