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

Stay Petition No.SP-208/10 & Appeal No.EA-181/10 (Arising out of Order-in-Appeal No.49/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 Mfg. Co. Applicant (s)/Appellant (s) Vs.

CCE-KOL-I Respondent (s)

Appearance:

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/75515/2015

Per Shri H.K.Thakur.

1. This stay application and appeal has been filed by the appellant with respect to Order-in-Appeal No.49/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 first appellate authority has rejected their appeal on merits as well as for not complying with the orders passed under Section 35F of the Central Excise Act, 1944. That Adjudicating authority under Order-in-Original No.10/2007 dated 29.5.2008 confirmed a demand of Rs.5,81,003/- for default in payment of duty under the provisions of Rule 4 and Rule 8(3A) of the Central Excise Rules, 2002 read with Section 11A(1) of the Central Excise Act, 1944. That appellant was paying the duty from Cenvat Credit account and asking for 50% of deposit by the first appellate authority was excessive. It was his case that prohibiting assesees from paying duty from Cenvat account during default period has been held to be not permissible as per Gujarat High Courts Order.

3. Shri S.K.Naskar, AC(AR) appearing on behalf of the Revenue argued that appellant has not complied with the pre-deposit order passed by the first appellate authority, therefore, appeal has been correctly rejected.

4. Heard both sides and perused the case records. It is observed from the Order-in-Appeal dated 18.12.2009 passed by the first appellate authority that the same has not been rejected only for non-compliance of pre-deposit ordered by order dated 30.09.2009 by the first appellate authority but also on merits. As the issue involved in these proceedings lies in a narrow compass, therefore, after allowing the stay application, appeal itself is taken up for disposal. It is further observed from the Order-in-Appeal dated 18.12.2009 that first appellate authority has passed a very cryptic order and has not given a reasoned order on the merit of the case. Learned Advocate on behalf of the appellant argued that goods in default period cannot be considered as non duty paid when duty has been paid from RG-23A part-II in view of a judgement of Gujarat High Court. The matter is, therefore, required to be remanded back to the first appellate authority to give a reasoned order on the merits of the case without insisting for a pre-deposit in this case and after affording a personal hearing to the appellant. Appellant should also furnish copies of the latest decisions of the court on this issue during the course of the hearing.

5. Appeal filed by the appellant is allowed by way of remand to the first appellate authority. Stay Petition 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

3

Appeal No.EA-181/10