Krishna Steel Industries vs Commissioner Of Central Excise, Nashik
- CitationAPPEAL No. E/89812/14-Mum
Ratio decidendi
The rule this decision rests on
Where the first appellate authority dismisses an appeal for non-compliance with the pre-deposit requirement of Section 35F of the Central Excise Act, 1944 without examining the merits, and the appellant has already deposited 10% of the disputed duty, that deposit is sufficient to entitle the appeal to be heard on merits, and the dismissal on that ground cannot stand. Such an order is to be set aside and the matter remanded to the first appellate authority to decide the appeal on merits, with the 10% deposit treated as sufficient and not refundable pending final determination.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
(Arising out of Order-in-Appeal No. NSK-EXCUS-000-APP-26-14-15 dated 14.7.2014 passed by Commissioner of Central Excise & Customs (Appeals), Nashik)
For approval and signature:
Honble Mr. P.K. Jain, Member (Technical) and Honble Mr. Ramesh Nair, Member (Judicial)
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1. Whether Press Reporters may be allowed to see : No 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 : Seen of the Order?
4. Whether Order is to be circulated to the Departmental : Yes authorities?
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Krishna Steel Industries Appellant Vs. Commissioner of Central Excise, Nashik Respondent
Appearance:
Shri Ashok Kumar Singh, Advocate, for appellant Shri N.N. Prabhudesai, Superintendent (AR), for respondent
CORAM:
Honble Mr. P.K. Jain, Member (Technical) Honble Mr. Ramesh Nair, Member (Judicial)
Date of Hearing: 7.4.2015 Date of Decision: 7.4.2015
ORDER NO
Per: P.K. Jain
There is an application for condonation of delay in filing the appeal. The delay is of 12 days. Keeping in view the reasons explained, we condone the delay.
2. We also note that the appeal is for a limited issue and can be disposed of at this stage itself and with the consent of both the sides, we take up the main appeal.
3. Heard both sides.
4. We find that the appeal of the appellant has been dismissed by the first appellate authority without going into the merits of the issue for non-compliance of Section 35F of the Central Excise Act. The appellant has deposited 10% of the duty amount for filing appeal before this Tribunal. In the present case, the demand has been raised against the appellant based upon the electricity consumption. Keeping in view the nature of the dispute and the final orders on the subject in subsequent decisions, we consider that the deposit of 10% is sufficient for hearing the appeal.
5. As noted above, the Commissioner (Appeals) has dismissed the appeal without going into the merits of the case. We set aside the order of the Commissioner (Appeals) and direct that the Commissioner (Appeals) will decide the appeal on merits. The appellant has already deposited 10% of the disputed duty, which will be considered as sufficient for hearing the appeal. No refund of the said amount will be given till the matter is finally settled.
6. The appeal is allowed by way of remand.
(Pronounced in Court)
(Ramesh Nair) Member (Judicial) (P.K. Jain) Member (Technical)
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