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M/S. Rotomac Electricals Pvt.Ltd vs Commissioner Of Central Excise, ...

Customs Excise and Service Tax Appellate Tribunal28 September 2015

Ratio decidendi

The rule this decision rests on

The Commissioner (Appeals) cannot dispose of an appeal under Section 35F of the Central Excise Act, 1944 by dismissing it for non-deposit of a penalty while the stay application is pending, where the appellant has deposited the entire confirmed duty and interest and the question at issue is debatable; in such a case the appellate authority must decide the appeal on merit without insisting on any pre-deposit. Where the appellant has deposited the confirmed duty and interest, and the issue on which the demand rests is a debatable one, the appellate authority is bound to decide the issue on merit rather than rejecting the appeal on the ground of non-deposit of penalty; the impugned order that fails to do so is liable to be set aside and the matter remanded for fresh decision on merit without any pre-deposit.

Written by Miss Lucy from the judgment below, not taken from a headnote.

Judgment

As delivered

IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATETRIBUNAL, KOLKATAEASTERN ZONAL BENCH: KOLKATA

Stay Petition No.SP-70541/13 & Appeal No.EA-70546/13 (Arising out of Order-in-Appeal No.08/KOL-VI/2013 dated 01.03.2013 passed by the Commissioner(Appeals) of Central Excise, Kolkata-III, 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. Rotomac Electricals Pvt.Ltd. Applicant (s)/Appellant (s) Vs.

Commissioner of Central Excise, Kolkata-VI Respondent (s)

Appearance:

NONE for the Appellant (s) Shri S.K.Naskar, AC(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/75528/2015

Per Dr. D.M. Misra.

1. Heard the ld.AR for the Revenue. None present for the Applicant.

2. Demand has been confirmed against the Applicant for non-inclusion of extra amount of freight charges in the assessable value. The entire demand with interest has been deposited by the Applicant.

3. The ld.AR for the Revenue brought to our notice that the ld.Commissioner(Appeals) has not decided the issue on merit, but dismissed their Appeal on the ground of non-deposit of the penalty amount, while disposing their Stay Application under Section 35F of Central Excise Act, 1944.

4. After hearing the ld.AR for the Revenue, we find that the appeal itself could be disposed of at this stage. Accordingly, after waiving the requirement of pre-deposit, we take up the appeal for disposal.

5. We find that the issue involved in the present case is whether the extra freight charges collected from the customers is includible in the assessable value of the goods or otherwise. Needless to mention the issue is a debatable one and the ld. Commissioner(Appeals) ought to have decided the same on merit when the Appellant had deposited the entire confirmed duty and interest. In the result, the impugned order is set aside and the appeal is remanded to the ld. Commissioner(Appeals) to decide the issue afresh on merit without insisting on any pre-deposit. Appeal allowed by way of remand. Stay Petition disposed of.

(Pronounced and dictated in the open court.)

SD/ SD/

(H.K.THAKUR) (D.M.MISRA)

MEMBER(TECHNICAL) MEMBER(JUDICIAL) sm

2 Appeal No. EA-70546/13

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