Shri Girija Smelters Ltd vs Commissioner Of Customs And Service ...

C/COD/20151/2015, C/COD/20152/2015, C/COD/20153/2015 in C/20022/2015-DB, C/20024/2015-DB, C/20025/2015-DB

Appeal(s) Involved:

C/20022/2015-DB, C/20024/2015-DB, C/20025/2015-DB

[Arising out of Order-in-Appeal No. 25/2014 dated 07/02/2014 passed by the Commissioner of Central Excise, Customs & Service Tax, Visakhapatnam-I ( Appeals)] [Arising out of Order-in-Appeal No. 27/2014 dated 07/02/2014 passed by the Commissioner of Central Excise, Customs & Service Tax, Visakhapatnam-I ( Appeals) ] [Arising out of Order-in-Appeal No. 26/2014 dated 07/02/2014 passed by the Commissioner of Central Excise, Customs & Service Tax, Visakhapatnam-I ( Appeals) ]

For approval and signature:

HON'BLE Mrs. ARCHANA WADHWA, JUDICIAL MEMBER HON'BLE Mr. B.S.V. MURTHY, 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? No 2 Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? Yes 3 Whether Their Lordships wish to see the fair copy of the Order? Seen 4 Whether Order is to be circulated to the Departmental authorities? Yes

Shri Girija Smelters Ltd. Plot No. 276-277, Sec-C, Urla Industrial Area, Raipur Chattishgarh  493 221 Appellant(s)

Shri Girija Alloys And Power (I) Pvt. Ltd. Survey No. 162-153, ADB Road, Peddapuram  533 437 East Godavari Dist. Andhra Pradesh Appellant(s)

Shri Gayatri Minerals Pvt. Ltd. WBIIDC Growth Center, Bishnupur, Bankura West Bengal  722 122 Appellant(s)

Versus Commissioner of Customs And Service Tax, Visakhapatnam Central Excise Building, Port Area, Visakhapatnam  530 035 Andhra Pradesh Respondent(s)

Appearance:

Mr. G. Shivadass, Advocate World Trade Centre No.404-406, 4th Floor, South Wing Brigade Gateway Campus No.26/1, Dr. Rajkumar Road, Bangalore - 560 055 Karnataka For the Appellant

Mr. A.K. Nigam, AR For the Respondent

Date of Hearing: 30/03/2015 Date of Decision: 30/03/2015 CORAM:

HON'BLE Mrs. ARCHANA WADHWA, JUDICIAL MEMBER HON'BLE Mr. B.S.V. MURTHY, TECHNICAL MEMBER

Final Order Nos. 20894-20896 / 2015

Per : ARCHANA WADHWA

All the 3 COD applications are being disposed of by a common order, praying for condonation of delay of around 234 days in presenting the present appeal.

2. After hearing both the sides it is seen that during the pendency of the appeal before Commissioner (Appeals), appellants were directed to deposit 50% of the confirmed demand against them vide Stay Order dated 06.01.2014. The issue involved is whether the imported goods are manganese ore or concentrate. As the Tribunal in identical type of cases has granted unconditional stay, the appellants, being aggrieved with the order passed by Commissioner (Appeals) directing them to deposit 50% of the demand, as a condition for hearing the appeal, filed modification application before the Commissioner (Appeals) praying for disposing of the appeals without insisting on any pre-deposit. The said applications were heard by Commissioner (Appeals) on 06.02.2014 and in the alternative the appellant prayed for extending the period to deposit the directed amount up to May 2014. Commissioner (Appeals) observed that he has no powers to extend the time limit set out in the interim order, rejected their prayer and also simultaneously dismissed the appeals for non-compliance vide his impugned order passed on 07.02.2014. Intimation about the same was given by the office of the Commissioner of Customs under the cover of their letter dated 11.02.2014. Appellants fairly agree that the said communication was received by them on 17.02.2014. The said appeal should have been filed by 17.05.2014 whereas they have actually been filed on 06.01.2015.

3. According to the learned advocate, the appellants were under a bona fide belief that inasmuch as Commissioner (Appeals) has dismissed the appeals for non-compliance and has not decided the matters on merit and inasmuch as subsequent to the dismissal they had deposited the directed amount on 17.02.2014 itself, the Commissioner (Appeals) would take up the appeals on merit thereafter. However subsequently they realized that the said order of dismissal passed by Commissioner (Appeals) is required to be appealed against before the Tribunal and accordingly appeals were subsequently filed with a delay of 234 days.

4. After appreciating the above submissions made by the learned counsel, we are of the view that inasmuch as the Commissioner (Appeals) has dismissed the appeals for non-compliance and the appellants not being legal experts, can entertain a view that the Commissioner (Appeals) is yet to decide the appeal on merits, especially when they have subsequently fulfilled the condition of pre-deposit. In view of the same, we condone the delay but with a cost of Rs. 25,000/- (Rupees Twenty Five Thousand only) in each appeal. The said cost should be deposited by the appellant within a period of 4 weeks from today.

5. At this stage we note that Commissioner (Appeals) has admittedly not disposed of the appeals on merits and the Stay Order passed by him stands complied with by the appellants, the appeals itself can be disposed of. Accordingly we set aside the impugned orders and remand all the matters to Commissioner (Appeals) for decision on merits, after ascertaining the fact of deposit of costs by the appellants.

6. COD applications and appeals get disposed of in the above manner.

(Order pronounced and dictated in open court)

(B.S.V. MURTHY) TECHNICAL MEMBER (ARCHANA WADHWA) JUDICIAL MEMBER

iss