M/S. Numaligarh Refinery Ltd vs Commissioner Of Central Excise & ...

Arising out of O/A No.40/SH/CE (A)/GHY/13 dated 28.11.2013 passed by Commissioner, Customs & Central Excise (Appeals), Guwahati.

For approval and signature:

DR. D. M. MISRA, HONBLE JUDICIAL MEMBER DR. I.P. LAL, HONBLE TECHNICAL MEMBER

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 authoritative report or not? :

3. Whether His Lordship wishes to see the fair copy of the Order? :

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

M/s. Numaligarh Refinery Ltd. APPELLANT(S) VERSUS Commissioner of Central Excise & Service Tax, Shillong

RESPONDENT (S)

APPEARANCE

Shri Deepno Sen, Advocate for the Appellant (s) Shri S. P. Pal, Appraiser (A.R.) for the Department

CORAM:

DR. D. M. MISRA, HONBLE JUDICIAL MEMBER DR. I.P. LAL, HONBLE TECHNICAL MEMBER

DATE OF HEARING & PRONOUNCEMENT : 21. 01. 2015

ORDER NO.FO/A/75032/2015

Per Dr. D. M. Misra :

This is an application for waiver of pre-deposit of service tax of Rs.22.55 lakhs and penalty of Rs.19.91 lakhs imposed under Section 78 of the Finance Act, 1994.

2. At the outset, the Ld. Advocate, appearing for the Applicant, has submitted that the ld. Commissioner (Appeals) has not decided the appeal on merit, but dismissed their Appeal on the ground that the Appeal papers were not signed by the authorized person, that is the Director of the company or Principal officer, hence the proper person has not endorsed the verification appended to the memo of appeal filed before him. The ld. Advocate for the Applicant submits that in the Minutes of Meeting of the Board of Directors of the Applicant held on 5th April, 2011, the officers mentioned therein, have been appointed as authorized person for signing all documents.

3. The ld. A.R. for the Department, does not dispute about the above facts advanced by the ld. Advocate for the Applicant, but submits that the said Board of Directors resolution, now placed by the ld. Advocate, was not before the ld. Commissioner (Appeals). He has fairly accepted that the issue has not been decided on merit, and he has no objection in remanding the matter to the ld. Commissioner (Appeals).

4. After hearing both sides for some time, we find that the appeal itself could be disposed off at this stage. Accordingly, after waiving the requirement of pre-deposit and with the consent of both sides, the appeal is taken up for final disposal.

5. We find that the ld.Commissioner (Appeals) has not decided the case on merit, but dismissed the appeal on the ground of non- maintainability as the principal officer has not signed the Appeal Memorandum, the Senior Manager of the company could not be considered as Principal Officer. We find that by the Board Meeting held on 5th April, 2011, various officers of the company have been authorized to sign the documents. Both sides agree that the Board of Directors resolution was not placed before the ld. Commissioner (Appeals). In the result, it is a fit case to remand the matter to ld. Commissioner (Appeals) to decide the issue afresh after considering the Board of Directors resolution and arrive at the conclusion about the maintainability of Appeal. Needless to mention, a reasonable opportunity of hearing be granted to the Appellant to present their case. All issues are kept open and both sides are at liberty to produce evidences in their support.

6. The appeal is allowed by way of remand. Stay petition is disposed off.

(Pronounced in the open Court)

Sd/ Sd/ (DR. I.P. LAL) (DR. D.M.MISRA) MEMBER (TECHNICAL) MEMBER (JUDICIAL) mm

2 S.T. Appeal No.75302/14