M/S. Core Indo Ispat Pvt. Ltd vs Cce, Chennai-Ii

(Arising out of Order-in-Appeal No. 38-40/2014 (M-II), dated 11.04.2014 passed by the Commissioner of Central Excise (Appeals), Chennai).

For approval and signature

Honble Shri R. PERIASAMI, Technical Member

1. M/s. Core Indo Ispat Pvt. Ltd. : Appellant 2. M/s. Bajrangbali Trading Co. 3. M/s. S.L.O. Industries

Vs.

CCE, Chennai-II : Respondent

Appearance

Shri S. Sivaramakrishnan, Adv., for the appellant

Shri R. Subramanian, AC (AR), for the respondent

CORAM

Honble Shri R. PERIASAMI, Technical Member

Date of Hearing/Decision: 20.03.2015

FINAL ORDER No. 40344-40346/2015

All the three applications are arising out of common order-in-original and common order-in-appeal, therefore, all are taken up together. These appeals were filed by the appellants against the OIA of the Commissioner (Appeals) dated 11.04.2014, dismissing their appeals for non-compliance of pre-deposit.

2. The Ld. Advocate submits that the Commissioner(Appeals) has ordered 50% of the duty confirmed and also 50% of the penalty imposed on the other two appellants. They filed the modification application on 13.02.2014 before the lower appellate authority but the same was not considered. He submits that on merit the case is in favour of them and he has not relied the case laws and even rejected the modification application on the ground that there is no power for the appellate authority to entertain modification of the order.

3. On the other hand, the Ld. AR reiterated the findings of the adjudicating authority and submits that since the appellants have not complied the pre-deposit order before the lower appellate authority, insisting of pre-deposit.

4. Heard both sides and perused the records.

5. On perusal of the records I find that the lower appellate authority ordered pre-deposit of 50% of duty amount and 50% of penalty confirmed in the adjudication order, which they failed to comply. On merits, the appellants availed cenvat credit on input srvices without even receiving such materials in their factory. Therefore, prima facie, the appellants have not made out a case for waiver of pre-deposit of duty along with interest and penalty. The applicants are directed to make pre-deposit of the following amounts:-

SLO Industries Ltd. 4.70 lakhs Bajrangbali Trading Co. 1.00 lakhs Core Industries Ispat Pvt. Ltd. 2.00 lakhs

Hence, the applicants are directed to comply the above pre-deposit within six weeks and to report compliance on or before 08.05.2015. Since the appellate authority has not decided the case on merits, it is appropriate that the appeal should be remitted back to the Commissioner (Appeals). Upon compliance, the appellants should produce the copy of the challan to the department within a week and the Ld. Commissioner (Appeals) after satisfying himself on the compliance of pre-deposit shall hear the case on merits, after following the principles of natural justice. All the stay and miscellaneous applications are disposed of and all the three appeals are remanded to the Commissioner (Appeals).

(Order pronounced and dictated in the open Court)

(R. PERIASAMI) TECHNICAL MEMBER BB 1