Kolisetty Alloy Castings vs Commissioner Of Customs, Central ...

[Arising out of Order-in-Appeal No. 176/2012 dated 26/07/2012 passed by the Commissioner of Customs, Central Excise and Service Tax, Hyderabad] [Arising out of Order-in-Appeal No. 30/2013 dated 30/03/2013 passed by the Commissioner of Customs, Central Excise and Service Tax, Hyderabad]

For approval and signature:

HON'BLE Mr. B.S.V. MURTHY, 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? No 2 Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? No 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

Kolisetty Alloy Castings Plot No. 16-H, IDA Balanagar, Hyderabad  500 037 Andhra Pradesh Appellant(s)

Versus Commissioner of Customs, Central Excise and Service Tax Hyderabad-IV Posnett Bhavan, Tilak Road, Ramkote, Hyderabad  500 001 Andhra Pradesh Respondent(s)

Appearance:

Mr. G. Narasimha Reddy, Advocate Flat No.102, Tirumala Gardens, Road No.1, Banjara Hills, Hyderabad-500 034 For the Appellant

Mr. S. Teli & Mr. Mohd Yusuf, AR For the Respondent

Date of Hearing: 02/03/2015 Date of Decision: 02/03/2015 CORAM:

HON'BLE Mr. B.S.V. MURTHY, TECHNICAL MEMBER

Final Order No. 20499-20500 / 2015

Per: B.S.V. MURTHY

In both the appeals issue involved is common and therefore both the appeals, miscellaneous application and stay applications are taken together. Since the appeals have been dismissed by the Commissioner (Appeals) for non-compliance with the requirement of pre-deposit of 50% of the duty demanded, the matter in any case has to be remanded after considering that the appellant is required to make any pre-deposit or not. Accordingly the miscellaneous application, stay applications and the appeals are taken up.

2. The miscellaneous application is for production of documentary evidence to show that appellant had deposited the amount of Rs. 18001/- (Rupees Eighteen Thousand and One only) which had been defaulted earlier subsequently. The additional evidence is admitted and miscellaneous application is disposed of.

3. The issue involved in both the appeals is default in payment of duty during a particular month and subsequent rectification by making cash payment. In the impugned period during which the default continues, as per the provisions of Rule 8 (3A) of Central Excise Rules, the appellant was required to pay duty consignment-wise and only by cash. However the appellant utilized the cenvat credit. As a result the appellant has been directed to make payment of duties in cash which was paid by them by utilizing cenvat credit.

4. The learned consultant submits that Honble High Court of Gujarat in the case of Shreeji Surface Coatings Pvt. Ltd. [2014-TIOL-2235-HC-AHM.-CX] had observed as follows:

4. When the entire showcause notice, order in original and appellate order are based on Subrule (3A) of Rule 8, the portion of which came to be struck down, such orders cannot survive. We have narrated facts only to demonstrate that the facts of the present case squarely fall within the portion of the Rule which was declared as ultra vires by the Court. It was only because the petitioner paid interest of barely about Rs.12,000/- through Cenvat Credit instead of paying it in cash, their all subsequent clearances were stigmatized. This was solely relying on the portion of Subrule (3A) of Rule 8, which required that the future clearances of a defaulter must be without utilization of the Cenvat Credit. Since portion of Subrule (3A) relevant to the issue has been held struck down by Honble High Court of Gujarat I consider that Commissioner (Appeals) can hear the appeals without insisting on any pre-deposit. Therefore without going into the merits of the case or the issue involved, both the orders-in-appeal are set aside and the matters are remanded to Commissioner (Appeals) with a direction to hear the appeals without insisting on any pre-deposit. Needless to say the appellant shall be given reasonable opportunity to present their case before the matter is finally decided. Miscellaneous application, stay applications and appeals get disposed of in above terms.

(Order pronounced in open court)

(B.S.V. MURTHY) TECHNICAL MEMBER

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