M/S Shri Sai Baba Silk Mills vs Commissioner, Central Excise & Service ...

Appeal No.E/995,1455,1836/2009 [Arising out of OIA-RKA-111-112-SRT-I-2009, dt. 17/03/2009; OIA-RKA-111-112-SRT-I-2009, dt. 16/06/2009; OIA-RKA-689-690-SRT-I-2009,dt. 15/09/2009, passed by Commissioner (Appeals), Central Excise & Service Tax, Surat-I]

1. M/s Shri Sai Baba Silk Mills, 2. M/s Shree Jagdamba Dyeing & Printing Mills P. Ltd Appellants

Vs

Commissioner, Central Excise & Service Tax, Surat-I Respondent

Represented by:

For Appellant: None For Respondent: Shri Jitendra Nair, Authorised Representative

For approval and signature:

Honble Mr. P.K. Das, Member (Judicial) Honble Mr. P.M. Saleem, Member (Technical)

1. Whether Press Reporters may be allowed to see the No Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?

2. Whether it should be released under Rule 27 of the No CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?

3. Whether their Lordships wish to see the fair copy of Seen the order?

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

CORAM:

HONBLE MR. P.K. DAS, MEMBER (JUDICIAL) HONBLE MR. P.M. SALEEM, MEMBER (TECHNICAL)

Date of Hearing/Decision:22.07.2015

Order No.A/11075-11077/2015, dt.22.07.2015

Per: P.K. Das

A common issue is involved in these appeals and therefore, all are taken up together for disposal.

2. By Final Order No.A/11715-11727/2013, dt.09.12.2013, the Tribunal set aside the impugned orders and allowed the appeals filed by the Appellants. Revenue filed appeal before the Hon'ble Gujarat High Court against the order of the Tribunal. By judgment dt.18.12.2014, in Tax Appeal No.989, 991 & 994 of 2014 (CCE & C, Surat-I Vs M/s Shree Jagdamba Dyeing & Printing Mills Pvt.Ltd. & other), the Hon'ble High Court set aside the order of the Tribunal and remanded to Tribunal to decide afresh. The relevant portion of the judgment of Hon'ble Gujarat High Court is reproduced below:-

9. Thus, in any appeal, where the decision under challenge relates to any duty demanded instead of goods, which are not under the control of the excise authorities or in respect to any penalty levied, the appellant has the duty to deposit with the Adjudicating authority such duty demanded or the penalty levied. Unless such pre-deposit requirement is waived either completely or partially either unconditional or on such condition as may be imposed such requirement would have to be fulfilled. It was, in this background, that the Commissioner, while substantially waiving the pre-deposit requirement, insisted that against a duty demand of Rs.17.59 lacs (rounded off) with matching penalty, the appellant should either deposit a sum of Rs.3.50 lacs or offer bank guarantee for such sum. It was because that the appellant did not fulfill this requirement that the appeal came to be dismissed by the Commissioner. When the Appellant therefore filed further appeal before the Tribunal, the question before the Tribunal was, whether the Appellant Commissioner committed an error in imposing such condition and subsequently dismissing the appeal for the Appellant not fulfilling such a condition. Unless and until the Tribunal held that such condition was illegally or erroneous and set aside the same the question of examining merits of the appellants claim did not arise. Even if the Tribunal was of the opinion that the entire pre-deposit requirement was to be waived in view of a strong case of the assessee or any other such ground, the Tribunal ought and should have passed such an order placing the Appellant back before the Commissioner for his consideration. In the present case, the Tribunal, instead of adopting such a route, virtually converted itself into the First Appellate Authority. The Tribunal is the final fact finding authority. Any further appeal against the decision of the Tribunal before the High Court would be available only on substantial question of law. When the statute provides for two layers of screening at the appellate stage, for questions of law and facts, it would even otherwise be not desirable to by pass the first appellate stage and permit the Tribunal to entertain the appeal as first appellate authority.

10. For all these reasons, the impugned judgments are quashed. Proceedings are placed back before the Tribunal for fresh reconsideration of the questions arising in the appeals. All appeals are disposed of accordingly.

2. After hearing the learned Authorised Representative for the Revenue and on perusal of the records, we find that the Commissioner (Appeals) dismissed the appeals for non-compliance of the stay order. The issue involved is availment of CENVAT Credit on the basis of invoices issued by the firms, which are not in existence. Prima facie, we find that the issue is covered by the decision of the Hon'ble Gujarat High Court in the case of Prayagraj Dyeing & Printing Mills Pvt.Ltd. Vs UoI  2013 (290) ELT 61 (Guj.), in favour of the Assessee. Hence, the Appellants have made out a prima facie case for waiver of pre-deposit of the entire amount of dues. As the Commissioner (Appeals) dismissed the appeals without going into the merits, it is appropriate that all the appeals be remanded to the Commissioner (Appeals) to decide afresh, without insisting for any pre-deposit.

3. In view of the above discussion, we set aside the impugned order and the matters are remanded to the Commissioner (Appeals) to decide on merit without insisting for any pre-deposit. All the appeals are allowed by way of remand.

(Dictated & Pronounced in Court)

(P.M. Saleem) (P.K. Das) Member (Technical) Member (Judicial)

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