M/S. West Bengal Chemical Industries ... vs Commissioner Of Central Excise, ...
- CitationAppeal No.Ex.Ap.75807/14
Ratio decidendi
The rule this decision rests on
Where the first-appellate authority dismisses an appeal for default in pre-deposit without deciding the matter on merits, the Tribunal may, on the appellant's undertaking to deposit a reduced sum, dispose of the appeal itself by remanding it for fresh adjudication, directing that the lower authority proceed on merits without insisting on any further pre-deposit once the reduced sum is deposited and compliance reported.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
Stay Petition No.SP-75890/14 & Appeal No.Ex.Ap.75807/14 (Arising out of Order-in-Appeal No.04/Kol-III/2014 dated 18.03.2014 passed by the Commissioner(Appeal-I) of Central Excise, Kolkata.)
FOR APPROVAL AND SIGNATURE
HONBLE DR. D.M. MISRA, MEMBER(JUDICIAL) HONBLE DR. I.P. LAL, 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. West Bengal Chemical Industries Ltd. Applicant (s)/Appellant (s) Vs.
Commissioner of Central Excise, Kolkata-III Respondent (s)
Appearance:
Shri S.Bhattacharjee, Advocate for the Appellant (s) Shri S.P.Pal, Appraiser(A.R.) for the Respondent (s)
CORAM:
Honble Dr. D.M. Misra, Member(Judicial) Honble Dr. I.P. Lal, Member(Technical)
Date of Hearing:- 07.01.2015 Date of Pronouncement :- 07.01.2015
ORDER NO.FO/A/75006/2015
Per Dr. D.M. Misra.
1. This is an Application seeking waiver of pre-deposit of duty of Rs.49.59 Lakhs and equal amount of penalty imposed under Section 11AC of Central Excise Act, 1944.
2. At the outset the Ld.Advocate submits that the Applicant is a joint venture company of the Govt. of West Bengal and incurring heavy losses and as on date the accumulated loss is Rs.19.00 Crores. He submits that the Ld.Commissioner(Appeals) has not decided their Appeal on merit, but dismissed on ground of default in making pre-deposit of Rs.25.00 Lakhs against their liability. He submits that with this financial condition it would be highly impracticable and also impossible for them to deposit and pursue with the Appeal. He makes an offer to deposit Rs.2.00 Lakhs with instruction of his client.
3. The Ld.A.R. for the Revenue fairly accepts that the issue has not been decided on merit by the Ld.Commissioner(Appeals). He has no objection in remanding the case to Ld.Commissioner(Appeals) for decision on merit.
4. After hearing both sides we find that the Appeal itself could be disposed of at this stage. Accordingly, we take up the Appeal for disposal with the consent of both sides.
5. Prima facie we find that the Ld.Commissioner(Appeals) has not decided the issue on merit. Taking into consideration the financial hardship expressed on behalf of the Applicant, the offer to deposit Rs.2.00 Lakhs seems to be reasonable. Consequently the Appellant is directed to deposit Rs.2.00 Lakhs and report compliance directly to the Ld.Commissioner(Appeals). The Ld.Commissioner(Appeals) after recording compliance would proceed with the matter afresh without insisting any further pre-deposit. Appeal allowed by way of remand. Stay Petition disposed of.
(Pronounced and dictated in the open court.)
SD/ SD/
(I.P.LAL) (D.M.MISRA) MEMBER(TECHNICAL) MEMBER(JUDICIAL) sm
3 Appeal No. Ex.Ap.75807/14
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