M/S.East India Floor Mills (P) Ltd vs Cce-Kol-Iv
- CitationAppeal No. Ex.Ap.76092 & 76093/14
Ratio decidendi
The rule this decision rests on
Where the first-appellate authority dismisses an appeal for non-compliance with a pre-deposit condition without deciding the merits, and the appellant offers a reasonable sum toward the pre-deposit, the Tribunal may dispose of the appeal by remanding it to that authority with a direction to record compliance with the reduced deposit and to decide the appeal on merits without insisting on any further pre-deposit, granting a reasonable opportunity of hearing and keeping all issues open.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
(Arising out of Order-in-Appeal No.197-198/KOL-IV/2014 dated 30.06.2014 passed by the Commissioner of Central Excise(Appeals), Kolkata-III.)
FOR APPROVAL AND SIGNATURE
HONBLE DR. D.M.MISRA, MEMBER(JUDICIAL) HONBLE DR.I.P.LAL, 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.East India Floor Mills (P) Ltd. Shri Rajesh Kedia Applicant (s)/Appellant (s)
Vs.
CCE-KOL-IV Respondent (s)
Appearance:
Shri S.P.Siddhanta, Consultant for the Appellant(s)
Shri A.K.Biswas, Supdt.(A.R.) for the Revenue
CORAM:
Honble Dr. D.M.Misra, Member(Judicial) Honble Dr.I.P.Lal, Member(Technical)
Date of Hearing :- 09.06.2015 Date of Pronouncement :- 09.06.2015
ORDER NO.FO/A/75290-75291/2015
Per Dr. D.M.Misra.
1. This is an application seeking waiver of pre-deposit of duty of Rs.3.89 Lakhs and equal amount of penalty imposed under section 11AC of the Central Excise Act, 1944.
2. At the outset Shri S.P.Siddhanta, ld.consultant for the applicant submitted that the ld.Commissioner(Appeals) has not decided the issue on merits, but dismissed their appeal for failure to deposit the directed amount under section 35F of Central Excise Act, 1944. He submits that they have a strong case on merit. However, he makes an offer to deposit Rs.40,000/-(Rupees Forty Thousand only) and prays that the matter may be remanded to the ld.Commissioner(Appeals) for deciding the issue on merit.
3. The ld.A.R. for the Revenue fairly accepted that the issue has not been decided on merit and he has no objection in remanding the case.
4. After hearing both sides for some time 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 the ld.Commissioner(Appeals) has not decided the issue on merit, but dismissed the appeal for failure to deposit Rs.3.00 Lakhs as a condition to hear their Appeal. We find that the offer to deposit Rs.40,000/- at this stage seems to be reasonable. Consequently we direct the Appellant to deposit Rs.40,000/- within a period of eight weeks from the date of communication of this order and report compliance directly to the ld.Commissioner(Appeals). Ld.Commissioner(Appeals) after recording compliance would proceed with the matter without insisting for any further pre-deposit. 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.
(Operative part of the order was pronounced in the open court.)
SD/ SD/
(I.P.LAL) (D.M.MISRA) MEMBER(TECHNICAL) MEMBER(JUDICIAL) sm
3
Appeal No.Ex.Ap.76092 & 76093/14
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