M/S. Nirmal Power Systems vs Commissioner Of Central Excise, ...

[Arising out of Order-in- Appeal No. RJB/613 to 663/MII/99 dated 20/8/1999 passed by the Commissioner of Customs & Central Excise(Appeals), Mumbai-II]

For approval and signature:

Honble Mr. P.K. Jain, Member(Technical) Honble Mr Ramesh Nair, Member(Judicial)

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1. Whether Press Reporters may be allowed to see : No 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 authoritative report or not?

3. Whether Their Lordships wish to see the fair copy : seen of the Order?

4. Whether Order is to be circulated to the Departmental : Yes authorities?

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M/s. Nirmal Power Systems :

Appellants

VS

Commissioner of Central Excise, Thane-II :

Respondent

Appearance

None for the Appellant Shri. Ashutosh Nath Asst. Commissioner(A.R.) for the Respondent

CORAM:

Honble Mr. P.K. Jain, Member (Technical) Honble Mr. Ramesh Nair, Member (Judicial)

Date of hearing: 17/3/2015 Date of decision 17/3/2015

ORDER NO.

Per : P.K. Jain

Brief facts of the case are that the appellant was not registered with the state government authority as SSI unit and was availing SSI benefits under excise law. Excise Notification No. 175/86 was amended vide notification No. 55/92 dated 31/3/1992. In pursuance of the said amendment demand were issued denying the benefit of notification for the period 1/4/92 to 21/5/92. On 22/5/92 another notification No. 67/92 dated 22/5/92 was issued amending original notification. Demand of Rs. 35,090/- was confirmed and penalty of Rs. 3500/- was imposed on the noticee. Aggrieved by the said order the appellant filed appeal before the Commissioner(Appeals) who vide order No. RJB/613-663/M-II/99 dated 20/8/1999 dismissed the appellants appeal for non-compliance of 35 F without going into merit of the issue. Aggrieved by the said order, appellant is before us.

2. We find that appellant have paid duty and penalty amount on 29/9/2003 after passing of the said order but before filing appeal before this Tribunal. As noted earlier since the Commissioner(Appeals) has not gone into the merit of the case and dismissed the appeal for non-compliance. The impugned order is set aside and the matter is remanded back to the Commissioner(Appeals) for deciding the appeal on merit. Perhaps the decision of this Tribunal in the case of Commissioner of C. Ex., Mumbai-I Vs. Plasto Foam Products [2008 (225) E.L.T. 159(Tri- Mumbai)] may be relevant to the issue. However the Commissioner(Appeals) may decide the issue on merit. The appeal is allowed by way remand in above terms.

(Operative part pronounced in court)

Ramesh Nair Member (Judicial) P.K. Jain Member (Technical)

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