M/S. Huller Screen Manufacturing Co vs Cce-Kol-I

(Arising out of Order-in-Appeal No.50/Kol-I/09 dated 18.12.2009 passed by the Commissioner (Appeals-I) 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. Huller Screen Manufacturing Co. Applicant (s)/Appellant (s)

Vs.

CCE-KOL-I Respondent (s)

Appearance:

Shri Shri Arijit Chakraborty, Advocate for the Appellant(s)

Shri S.K.Naskar, AC(AR) for the Revenue

CORAM:

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

Date of Hearing :- 21.09.2015 Date of Pronouncement :- 21.09.2015

ORDER NO.FO/A/75514/2015

Per Shri H.K.Thakur.

This stay application and appeal have been filed by the appellant against Order-in-Appeal No.50/Kol-I/09 dated 18.12.2009 passed by the Commissioner (Appeals-I) of Central Excise, Kolkata as first appellate authority.

2. Shri Arijit Chakraborty (Advocate) appearing on behalf of the appellant argued that Commissioner(Appeals) vide Stay Order No.284/KOL-I/08 dated 13.11.2008 directed the appellant to predeposit 50% of the entire demand confirmed and penalty imposed. That appellant vide letter dated 23.11.1999 informed their inability to comply with the Stay Order. That for non-compliance of Stay Order first appellate authority has rejected their appeal. That this Bench vide order dated 10.07.2012 ordered pre-deposit of 50% of duty demanded. That a Misc. application for modification of stay/recalling of earlier order was also rejected by this Bench under order No.M-604/KOL/2012 dated 05.11.2012. That appellant filed a writ petition in Calcutta High Court and Honble High Court vide Order dated 31.01.2013 [2015 (315) ELT 544(Cal)] remanded the case to this Tribunal for considering the merits of the case also while deciding the stay application.

2.1 Learned Advocate further argued that on merits appellant has a strong case. That appellant was wrongly classifying their product Screens, Stuffs, Roller under Tariff heading No.84369900. That vide a letter dated 23.12.2009 appellant submitted that their products are classifiable under Tariff heading 73063090 chargeable to 16% duty and also submitted a Charted Engineers Certificate dated 27.11.2007 to that effect. That appellant exported certain consignments of Screens by paying 16% duty and were also sanctioned the rebate claims filed by the appellant. That appellant is also manufacturing Carbon Steel Strips under Tariff heading 72112390 which are dutiable. That the present demand of Rs.19,51,315/- has been confirmed against the appellant under Rule 6(3)(b) of the Cenvat Credit Rules, 2004 @ 10% for using the inputs in dutiable and excisable finished goods. That appellant has correctly classified the goods under 73063090 which are dutiable and provision of Rule 6(3) of the Cenvat Credit Rules, 2004 are not applicable.

3. Shri S.K.Naskar, AC(AR) appearing on behalf of the Revenue argued that correct classification of the Screens manufactured by the appellant is under Tariff Heading 84369900 chargeable to Nil rate of duty and strongly argued that duty and penalties have been correctly imposed and first appellate authority correctly asked for a deposit.

4. Heard both sides and perused the case records. Honble High Court vide order dated 31.01.2013 in WP No.8 of 2013 filed by the appellant made following observations:-

3.?The aforesaid application for recalling of the ex parte order dated 10th July, 2012 referred to above has been dismissed on the purported ground that the learned Tribunal had no power to modify its own orders. The time for compliance of the order dated 10th July, 2012 was, however extended by four weeks from the date of receipt of the said order.

4.?The decision of the learned Tribunal holding that the modification of the order was not permissible in law, is misconceived. An order directing pre-deposit is an interim order and is liable to be varied and/or modified. Rule 41 of the Central Excise, Customs and Service Tax Tribunal (Procedure) Rules, 1982 enables the learned Tribunal to make such orders or to give such directions as may be necessary or expedient to give effect to its orders or in relation to its orders to inter alia secure the ends of justice.

5.?The learned Tribunal has power to pass any order for the ends of justice. Furthermore, the proviso to Rule 20 even enables the learned Tribunal to recall ex parte dismissal of an appeal. It could not possibly have been the intention of the Rules, that the learned Tribunal would lack power to recall and/or modify an ex parte interim order when it has expressly been conferred the power to recall an ex parte dismissal of the appeal.

6.?In my view, Rule 41 which expressly empowers the learned Tribunal to pass any order or to give any direction to secure the ends of justice enables the learned Tribunal to modify or even recall its interim orders for the ends of justice.

7.?The learned Tribunal has apparently not considered the application for recalling of the order dated 10th July, 2012 on merits but has dismissed the application on the misconceived view that the order could not be recalled and/or modified.

8.?The impugned order dated 5th November, 2011 is not sustainable in law and the same is liable to be set aside and quashed.

9.?The learned Tribunal shall decide the application afresh in the light of the observations made above.

5. It is observed that from the case records that first appellate authority has not decided the case on merits regarding classification of the goods manufactured and exported by the appellant on payment of duty. Department also accepted the payment of duty and also sanctioned rebate claims on the goods which now are proposed to be chargeable to NIL rate of duty. In the interest of justice Order dated 18.12.2009, passed by the first appellate authority is set aside and the case is remanded to the first appellate authority to first decide the issue of classification of impugned goods on merits without insisting for any pre-deposit. Needless to say that appellant should be given an opportunity of personal hearing before deciding the issue in remand proceedings on merits.

6. Appeal filed by the appellant is allowed by way of remand. Stay Application filed by the appellant is also disposed off.

(Operative part of the order was pronounced in the open court.) SD/ SD/

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

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Appeal No.EA-180/10