M/S. B.R. Marbles Pvt. Ltd vs Commr. Of Customs (Port), Kolkata

(Arising out of the Order-in-Appeal No. 46/CUS (Apprg.) /KOL (P)/2013 dated-11/12/2013 passed by the Commissioner (Appeals), Kolkata)

For approval and signature of:

DR.D.M. MISRA, HONBLE JUDICIAL MEMBER DR. I.P. LAL, HONBLE 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?

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

M/s. B.R. Marbles Pvt. Ltd. APPELLANT(S) VERSUS Commr. of Customs (Port), Kolkata RESPONDENT(S)

APPEARANCE

Sri Vareen Vijaywara & Sri Ashesh Ternain, C.A. FOR APPELLANT(S) Sri S.P. Pal, Appraiser, (A.R.), FOR THE RESPONDENT(S) CORAM: DR.D.M. MISRA, HONBLE JUDICIAL MEMBER DR. I.P. LAL, HONBLE TECHNICAL MEMBER

DATE OF HEARING & DECISION : 24/06/2015

ORDER NO.fo/a/75379/15 Per DR. D.M. MISRA Heard both sides.

This is an application for waiver of pre-deposit of duty of Rs.18.09 Lakhs and penalty of Rs.25,000/- imposed under Section 117 of Customs Act, 1962.

2. At the outset, the Ld. A.R. for the Revenue submits that the present appeal has been filed by the Applicant against an interim order of the Ld. Commissioner(Appeals), whereby he has directed the applicant do deposit Rs.9.00 Lakhs while disposing their stay application filed under Section 129E of Customs Act, 1962.

3. Ld. A.R. for the Revenue categorically submits that the appeal is still pending before the Ld. Commissioner (Appeals) and hence the present Appeal is accordingly not maintainable before this Forum. He refers to the judgment of M/s. Siddarth Engg.& Shipbuilders Co. Pvt. Ltd. Vs. Commr. of Customs, GOA reported in 2014 (308) E.LT. 553 (Tri.-Mumbai).

4. Ld. Chartered Accountant for the Applicant submits that the preamble of the said order shows that an appeal could be filed before this Tribunal against the said interim order. He refers to the judgment of this Tribunal in the case of Syed Aizaz Ahmed Vs. Commr. of Customs, Bangalore reported in 2013 (297) E.L.T. 535 (Tri.-Bangalore) and Siddeshwar SSK Ltd. Vs. Commr. of Central Excise, Aurangabad reported in 1997 (92) ELT 616 (Tribunal).

5. After hearing both sides for some time, we find that the appeal itself could be disposed off at this stage. Accordingly, we take up the appeal for disposal with the consent of both sides.

7. We find that the appellant has filed the present appeal against the interim order of the Ld. Commissioner (Appeals) wherein he has directed the Appellant to deposit Rs.9.00 Lakhs, while disposing the application under Section 129E of the Customs Act, 1962. The Appeal is still pending before the Ld.Commissioner(Appeals). In view of the judgment of this Tribunal in M/s. Siddarth Engg.& Shipbuilders Co. Pvt. Ltd.s case(supra) , we do not find merit in the present appeal being filed against the interim order. The judgments cited by the Ld. C.A. are not applicable to the present case in as much as in Syed Aizaz Ahmeds case (supra) the appeal was dismissed by the Ld. Commissioner (Appeals) for non compliance and the facts and circumstances in M/s. Siddeshwar SSK Ltd. are different from the present case. In these circumstances, the appeal is dismissed being non-maintainable. S.P. disposed off.

(Dictated & pronounced in the open Court) Sd/- 17/07/15 Sd/- 17/07/15 (DR.I.P.LAL) (DR. D.M. MISRA) TECHNICAL MEMBER JUDICIAL MEMBER

k.b/-

Customs Appeal No 75404/2014

3