) Swastika Builders vs Commissioner Of C.E. ,Customs&

(ARISING OUT OF ORDER-IN-APPEAL NOS.19/SLG/2013 DATED-20/02/2013 PASSED BY COMMISSIONER OF CENTRAL EXCISE (APPEALS-III), KOLKATA

FOR APPROVAL AND SIGNATURES OF

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 Their Lordships wish to see the fair copy : of the Order? 4. Whether Order is to be circulated to the Departmental : Authorities?

1) Swastika Builders

APPLICANT(S)/APPELLANT (S)

VERSUS

COMMISSIONER OF C.E. ,CUSTOMS& SERVICE TAX, SILLIGURI

...RESPONDENT (S)

APPEARANCE:

SHRI SHYAMAL DEY, ADVOCATE, FOR THE APPLICANT(S)/APPELLANT(S);

SHRI S.P. PAL, APPRAISER (A.R.) FOR THE REVENUE.

CORAM:

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

Date of Hearing& Decision:23.03.2015

ORDER NO : FO/A/75204/2015

Per Dr. D.M.Misra

This Application is filed seeking waiver of pre-deposit of E. Cess & S.H.E. Cess of Rs.50,104/- and Rs.16,816/- along with equal penalty & Interest as applicable.

2. At the outset, ld. Advocate for the Applicant submits that the ld. Commissioner (Appeals) has not decided the issue on merits, but dismissed the appeal for non-compliance with the direction of pre-deposit. Ld. Advocate, Shri Shyamal Dey for the Applicant submits that the relevant bills of entry were duly assessed by the Customs Authorities and accordingly they have discharged the assessed duty on such bills of entry. It is his submission that the demand notice issued by the Department is grossly barred by limitation as the same was issued after the prescribed period of one year.

3. Ld. AR for the Revenue does not dispute about the said facts.

4. After hearing both sides for some time, we find that the Appeals itself could be disposed off, at this stage. Accordingly, after allowing waiver of pre-deposit of dues adjudged, we take up the Appeal for disposal with the consent of both sides.

5. We find that the ld. Commissioner (Appeals) has not decided the issue on merits, but dismissed the appeal for non-compliance with the direction of pre-deposit. We are of the view that the Appellant be given an opportunity to place their case both on merit as well as on limitation before the ld. Commissioner (Appeals) in the interest of justice. Consequently, we set aside the Order-in-Appeal and remit the matter to the ld. Commissioner (Appeals) for deciding the issues afresh, without insisting any pre deposit from the Appellants. Needless to mention, a reasonable opportunity of hearing be given to the Appellants. All issues are kept open. Appeals is allowed by way of remand. Stay Petition disposed off.

(Pronounced & dictated in the open court)

SD/ SD/

(I.P.LAL) (D.M.MISRA) MEMBER(TECHNICAL) MEMBER(JUDICIAL)

sm

3 Cus.Ap.70335/13