M/S. Apex Enterprise vs Commissioner Of Central Excise, Bolpur

(Arising out of Order-in-Appeal No.113/Bol/2011 dated 24.08.2011 passed by the Commissioner(Appeal-IV) of Central Excise, Kolkata.)

FOR APPROVAL AND SIGNATURE

HONBLE DR. D.M. MISRA, MEMBER(JUDICIAL) HONBLE SHRI H.K.THAKUR, MEMBER(TECHNICAL)

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 Authorative report or not?

3. Whether Their Lordship wishes to see the fair copy of the Order?

4. Whether Order is to be circulated to the Departmental Authorities?

M/s. Apex Enterprise Applicant (s)/Appellant (s)

Vs.

Commissioner of Central Excise, Bolpur Respondent (s)

Appearance:

Shri N.K.Chowdhury, Advocate for the Appellant (s)

Shri K.Chowdhury, Supdt.(AR) for the Respondent (s)

CORAM:

Honble Dr. D.M. Misra, Member(Judicial) Honble H.K.Thakur, Member(Technical)

Date of Hearing:- 14.09.2015 Date of Pronouncement :- 14.09.2015

ORDER NO.FO/A/75493/2015

Per Dr. D.M. Misra.

1. This is an Application seeking waiver of pre-deposit of Service Tax of Rs.37.87 Lakhs and equal amount of penalty imposed under section 78 and penalties under other provisions of Finance Act, 1994.

2. At the outset Shri N.K.Chowdhury, ld.Adv. for the applicant submits that the applicant is a proprietorship concern and the proprietor has expired on 30th January, 2012 and the present applicant Shri Avik Chowdhury, is the successor. He submits that out of the total taxable value of Rs.4.00 Crores, on which demand has been confirmed, approximately, Rupees Two & Half Crores relate to the value representing non-taxable services hence the computation of Service Tax by the adjudicating authority is erroneous and untenable in law. Further he submits that the Ld.Commissioner(Appeals) in disposing their Stay Application directed them to deposit Rs.18.00 Lakhs and on failure to deposit the said amount dismissed their Appeal without going into the merits of the case. He submits that financial condition of the Applicant is very bad, inasmuch as the total income for the assessment year is only Rs.2.30 Lakhs and he is not in a position to pay the amount directed by the ld.Commissioner(Appeals). However, on the instruction of the client he makes an offer to deposit Rs.1.00 Lakh.

3. The ld.AR for the Revenue reiterated the findings of the ld.Commissioner(Appeals).

4. After hearing both sides, we find that the Appeal itself could be disposed of at this stage. Accordingly, we take up the Appeal itself for disposal with the consent of both sides.

5. We find that ld.Commissioner(Appeals) has not considered the issue on merit but dismissed their appeal for non-compliance with the direction of pre-deposit of Rs.18.00 Lakhs. Considering the financial hardship and prima facie merit of the case we are of the view that the offer to deposit Rs.1.00 Lakh seems to be reasonable and accordingly we direct the Appellant to deposit Rs.1.00 Lakhs within a period of 8(eight) weeks and report compliance directly to the ld.Commissioner(Appeals). Ld.Commissioner(Appeals) after recording compliance would proceed to hear the case on merits. Needless to mention a reasonable opportunity of hearing be granted to the Appellant. All issues are kept open. Appeal allowed by way of remand. Stay Petition disposed of.

(Pronounced and dictated in the open court.)

SD/ SD/

(H.K.THAKUR) (D.M.MISRA) MEMBER(TECHNICAL) MEMBER(JUDICIAL) sm

3 Appeal No. ST-513/11