Gem Granites vs Commissioner Of Central Excise

CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH CHENNAI

Appeal Nos. C/S/41521/2013 & C/41769/2013 E/S/41520/2013 & E/41768/2013

[Arising out of Order dt.5.6.2013 in Appeal No.33/2012 (M-IV) passed by the Commissioner of Central Excise (Appeals), Chennai]

Gem Granites Appellant

Versus

Commissioner of Central Excise, Chennai-IV Respondent

Appearance:

Shri Raghavan Ramabadran, Advocate For the Appellant

Shri N. Rajagopal, Special Counsel For the Respondent

CORAM :

Honble Shri D.N. Panda, Judicial Member Honble Shri R. Periasami, Technical Member

Date of Hearing/Decision : 16.04.2015

FINAL ORDER No.40435-40436/2015

Per D.N. Panda

Ld. counsel submits that appellant has been deprived of the process of justice at the threshold when the appellate authority below directed to deposit 50% of the demand in this case. When the appellant failed to make compliance with the stay order passed by learned commissioner (Appeals), its appeal was dismissed in limini. Submitting prima facie case of the appellant, learned counsel says that Revenue should not do any arbitrary adjudication without looking into the intention and objective of the notification which by no means should be defeated. Therefore, if the appeal goes back to learned Commissioner (Appeals), at least during the course of appeal hearing, that authority shall appreciate merits of the case since there are various issues involved in these appeals which need to be sorted out by that authority on facts as well as on law. The exemption notification is to be rightly construed. Therefore, appellant's prayer is if predeposit is waived in view of control of the Authority over the goods, it shall get a reasonable opportunity of hearing before Commissioner (Appeals).

2. Revenue on the other hand submits that there is gross violation of the notification conditions by appellant. Although appellant makes a plea that its capital goods are under the control of Revenue, that is not in reality so. The capital goods are in mining area of the appellant and Revenue does not have watch and ward over the same or physical control thereof. Therefore, appellant's plea that Section 129E of the Customs Act applies is baseless. Revenue further submits that intention of the notification is to manufacture articles of granites for exports. Appellant simply exported the granite blocks for which it should not get the exemption granted by the notification.

3. Heard both sides and perused the records.

4. We have very limited scope at this stage to appreciate merits of each other. Therefore, to grant early opportunity of hearing to appellant, and to do justice to both sides, appellant is directed to make a predeposit of Rs.1,00,00,000/- (Rupees One Crore only) in five equal monthly instalments of Rs.20 lakhs each by 30th of each month. The first instalment shall be paid by 30.5.2015 and thereafter by 30th of subsequent four months. Within a week of such deposit, appellant shall submit copies of challans as proof of deposit to the adjudicating authority, Commissioner (Appeals) and office of learned CDR to ensure that compliance has been made to the direction above. Failure to make deposit of any of the instalments, shall render this order vacated and appeals stand dismissed.

5. Consequent upon the deposit of all the instalments, appellant shall move an application to Commissioner (Appeals) to fix the hearing. Upon such application, verifying the deposits, the authority shall hear the appellant both on facts and law and pass a reasoned and speaking order.

6. In view of disposal of the stay application in the manner indicated above, both the appeals are disposed remanding the same to Commissioner (Appeals).

(Dictated and pronounced in open court)

(R. PERIASAMI) (D.N. PANDA) TECHNICAL MEMBER JUDICIAL MEMBER

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