M/S. Allied Specialty Papers I Pvt. Ltd vs Cc (Port Export)

Customs Excise and Service Tax Appellate Tribunal23 April 2015

CitationAppeal No.1521/2014

Ratio decidendi

The rule this decision rests on

The Tribunal, on a stay application, may require pre-deposit of a sum fixed by balancing the parties' respective submissions in the circumstances of the case, and in lieu of a full pre-deposit it may direct a partial deposit by a specified date as a condition for hearing the matter on merits and for remanding the refund question. Where the Commissioner (Appeals) has disposed of an appeal ex parte, and the dispute turns on a narrow factual reconciliation that the assessee can address, the appropriate course is to remand the matter to the adjudicating authority with a direction to grant a reasonable opportunity of hearing, to consider the assessee's reconciliation and pass an order on whether a refund arises, with no recovery if a refund arises and recovery otherwise. Where a show cause notice seeking to call back an earlier refund is pending before the adjudicating authority, it is to be disposed of together with the order passed on the remanded appeal.

Written by Miss Lucy from the judgment below, not taken from a headnote.

Judgment

As delivered

IN THE CUSTOMS, EXCISE & SERVICE TAXAPPELLATE TRIBUNALSOUTH ZONAL BENCH AT CHENNAIC/MISC/42612/14 & C/42628/2014

(Arising out of Order-in-Appeal No.1521/2014 dated 21.08.2014, passed by the Commissioner of Central Excise (Appeals), Chennai).

M/s. Allied Specialty Papers I Pvt. Ltd. : Appellant

Vs.

CC (port Export), : Respondent

Appearance

Shri Vinay N Arunsurkar, Adv., For the applicant

Shri B. Balamurugan, AC (AR) For the respondent

CORAM

Honble Shri D.N, PANDA, Judicial Member Honble Shri R. PERIASAMI, Technical Member

FINAL ORDER No. 40454 / 2015

Date of Hearing/Decision: 23.04.2015

Per: D.N. Panda

Ld. Counsel submits that in view of the success of Revenue before Ld. Commissioner (Appeals) denying refund to the assessee, the appellant has come in present appeal before Tribunal. While such appeal remedy was pending before Tribunal, ld. adjudicating authority issued a notice dated 03.11.2010 to the appellant to call back the refund that was granted by him by his order dated 25.06.2010.

1.2. His further submission is that Ld. Commissioner (Appeals) without hearing the appellant disposed the appeal on 21.08.14 exparte after one year of the last opportunity granted on 21.08.2014. Such belated disposal deprived the appellant to justice.

1.3. It was further submitted that there is absolutely no discrepancy in respect of description of the goods in sales tax realization invoices as compared to the goods appearing in Bill of Entries. If an opportunity is granted to it, it shall reconcile the discrepancy pointed out by ld. Commissioner (Appeals) in his order at page-3. On such factual position, appellants prayer is to waive the requirement of pre-deposit and hear its appeal being in narrow compass.

2. Revenue on the other hand says that the appellant has already taken refund which was granted by Adjudicating Authority. That is called back by the authority issuing show cause notice dated 03.11.2010. Revenue being successful before ld. Commissioner (Appeals), realization of refund that was already been paid to appellant is warranted by law. Therefore pre-deposit of the entire amount is disirable.

3. Heard both sides and perused the records.

4. Appellants prayer to dispose the appeal expeditiously in view of short dispute involved to reconcile the description of sale of goods in sales tax collecting sales bills is justified in the fitness of the circumstances of the case. Therefore striking a balance between the arguments of both sides, appellant is directed to deposit an amount of Rs. 2,00,000/- (Rupees Two lakhs only) by 30.04.2015 and produce the challan before Ld. adjudicating authority by 07.05.2015 with an application to him praying for fixation of hearing to examine the reconciliation of the discrepancy between the goods imported and goods sold through sales tax paying invoices.

5. In the event, the appellant complies to the direction above the authority shall grant reasonable opportunity of hearing to the appellant to reconcile the discrepancy stated above and considering its submission as well as the reconciliation statement shall pass appropriate order as to whether the refund arises or not. If refund arises there shall not be recovery, otherwise appropriate recovery shall be done.

6. As noticed from the facts above that show cause notice dated 03.11.2010 is pending before the adjudicating authority, he shall dispose the same while passing appropriate order on the appeal remanded to him by this order.

7. In the result, both the stay petition and appeal are disposed of in the manner indicated above.

(Order dictated and pronounced in the open Court)

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

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