Wanbury Ltd vs Commissioner Of Central Excise

Customs Excise and Service Tax Appellate Tribunal2 February 2015

CitationAppeal No. ST/88947/13

Ratio decidendi

The rule this decision rests on

The first appellate authority was not entitled to dismiss the appeal for non-compliance with a pre-deposit it had itself ordered, where the issue is arguable and the appellant has already deposited a substantial part of the confirmed liability; the appeal must be decided on merits after a hearing, without insisting on any further pre-deposit.

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

Judgment

As delivered

IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNALWEST ZONAL BENCH AT MUMBAICOURT No. IApplication No. ST/S/98365/13in Appeal No. ST/88947/13

(Arising out of Order-in-Appeal No. US/175/RGD/2013 dated 27.6.2013 passed by Commissioner of Central Excise (Appeals), Mumbai II)

For approval and signature:

Honble Mr. M.V. Ravindran, Member (Judicial) Honble Mr. P.R. Chandrasekharan, Member (Technical)

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1. Whether Press Reporters may be allowed to see : No 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 : No CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?

3. Whether Their Lordships wish to see the fair copy : Seen of the Order?

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

======================================== Wanbury Ltd. Appellant Vs. Commissioner of Central Excise, Respondent Raigad

Appearance: Shri Vinay Jain, C.A. for appellant Shri B. Kumar Iyer, Supdt (AR), for respondent

CORAM: Honble Mr. M.V. Ravindran, Member (Judicial)

Honble Mr. P.R. Chandrasekharan, Member (Technical)

Date of Hearing: 02.02.2015 Date of Decision: 02.02.2015

ORDER NO

Per: M.V. Ravindran

After hearing both sides on the stay petition, we find that the appeal itself can be disposed of at this juncture as the issue lies in a narrow compass.

2. We find from the records that the first appellate authority has dismissed the appeal on the ground of non-compliance of pre-deposit of Rs.2,60,000/- ordered by him. It transpires from the records that the amount of service tax liability confirmed is approximately Rs.8.93 lakhs. Against which, adjudicating authority has appropriated an amount of Rs.1.87 lakhs. We find that the issue involved in this case is an arguable one and needs consideration on merits. At the same time we also find that the Co-ordinate Bench of this Tribunal has taken a view for granting unconditional stay as has been brought to our notice in the case of Gujarat Ambuja Exports Ltd. v. CCE Ahmedabad - 2013 (30) STR 667 (Tri. Ahmd.) and Ascent Fine Chem Ltd. vs. CST - 2012-TIOL-980-CESTAT(Ahm). In our view the first appellate authority should dispose the appeal on merits after granting personal hearing to the appellant as in our view the amount deposited by the appellant is enough to dispose of the appeal on merits. Accordingly, we set aside the impugned order and remand the matter back to the first appellate authority to consider the issue afresh after following the principles of natural justice and dispose of the appeal without insisting on any further pre-deposit.

3. Appeal is disposed of by way of remand.

(Dictated in Court)

(P.R. Chandrasekharan) Member (Technical) (M.V. Ravindran) Member (Judicial)

nsk

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