M/S.Model Heavy Fabrication Pvt.Ltd vs Commissioner Of Central Excise & ...
- CitationAppeal No.EA-44/11
Ratio decidendi
The rule this decision rests on
The Commissioner (Appeals) cannot dismiss an appeal for non-compliance with a pre-deposit direction where the appellant has since complied with a pre-deposit direction made by the Tribunal on a stay application, and where the appeal is remanded for decision on merits, the Commissioner may not insist upon any further pre-deposit.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
Appeal No.EA-44/11 (Arising out of Order-in-Appeal No.81/JSR/2010 dated 01.11.2010 passed by the Commissioner(Appeals) of Central Excise & Service Tax, Ranchi.)
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.Model Heavy Fabrication Pvt.Ltd. Applicant (s)/Appellant (s) Vs.
Commissioner of Central Excise & Service Tax, Jamshedpur Respondent (s)
Appearance:
Shri A.K.Srivastava, Advocate for the Appellant (s) Shri K.Chowdhury, Supdt.(AR) for the Respondent (s)
CORAM:
Honble Dr. D.M. Misra, Member(Judicial) Honble Shri H.K.Thakur, Member(Technical)
Date of Hearing:- 28.09.2015 Date of Pronouncement :- 28.09.2015
ORDER NO.FO/A/75542/2015
Per Dr. D.M. Misra.
1. Heard both sides.
2. This is an Appeal filed against Order-in-Appeal No.81/JSR/2010 dated 01.11.2010.
3. At the outset, the ld.Advocate has pointed out that the ld.Commissioner(Appeals) has dismissed their appeal for non-compliance with the direction of pre-deposit of Rs.5.00 Lakhs under Section 35F of Central Excise Act, 1944. He further submits that this Tribunal while disposing their stay application directed them to deposit 25% of the duty involved vide Order No.S/156/KOL/2013 dated 25.04.2013 which they have complied.
4. The ld.A.R. for the Revenue submits that in view of the judgement of Honble Supreme Court in the case of CCE, Chandigarh vs. Smithkline Beecham Co. Health C.Ltd. 2003 (157) ELT 497(SC), the matter should be remanded to the ld.Commissioiner(Appeals) for decision on merits.
5. We agree with the ld.AR for the Revenue. Consequently the appeal is remanded to the ld.Commissioner(Appeals) to decide the issue on merit without insisting any 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.
(Pronounced and dictated in the open court.)
SD/ SD/
(H.K.THAKUR) (D.M.MISRA) MEMBER(TECHNICAL) MEMBER(JUDICIAL) sm
2 Appeal No. EA-44/11
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