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Ankit Pulps & Boards Pvt. Ltd. v/s Commissioner of Central Excise, Nagpur

    APPLICATION No. E/S/1926/09 APPEAL No. E/1314/09 (Arising out of Order-in-Appeal No. SR/213/NGP/2009 dated 24.9.2009 passed by Commissioner of Central Excise & Customs (Appeals), Nagpur)

    Decided On, 09 August 2010

    At, Customs Excise Service Tax Appellate Tribunal West Zonal Bench At Mumbai

    By, THE HONOURABLE MR. P.G. CHACKO
    By, MEMBER (JUDICIAL) & THE HONOURABLE MR. S.K. GAULE
    By, MEMBER (TECHNICAL)

    Shri P.V. Sadavarte, Advocate, for appellant. Shri H.B. Negi, Authorised Representative (SDR), for respondent.



Judgment Text

Per: P.G. Chacko


This application seeks waiver of pre-deposit and stay of recovery in respect of duty and penalty. After examining the records and hearing both sides, we find that this is a case fit for summary disposal. Accordingly, after dispensing with pre-deposit, we take up the appeal.


2. The issue involved in this case is whether certain sales tax incentives given by the State Government to manufacturers like the appellant were liable to be abated from the sale price of the excisable goods cleared during the material period. The lower appellate authority did not find prima facie case for the assessee and, therefore, asked them to deposit the entire amount of duty under Section 35F of the Central Excise Act. There was no deposit by the party and consequently their appeal came to be rejected on the ground of non-compliance with Section 35F ibid. The learned counsel submits that this Bench has granted waiver and stay in similar cases earlier vide Hindustan Fastners (P) Ltd. vs. CCE, Nasik 2010 (249) ELT 77 (Tri.-Mumbai) and Kinetic Engineering Ltd. vs. CCE, Pune 2006 (205) ELT 877 (Tri.-Mumbai). The learned counsel has also relied on certain other decisions of this Tribunal as well as on certain circulars issued by the Board. We have heard the learned SDR also, who has reiterated the findings of the Commissioner (Appeals).


3. We find that the appellant has a strong prima facie case on the strength of the stay orders and circulars cited by their counsel. It is, therefore, unreasonable for the learned Commissioner (Appeals) to have required them to pre-deposit the duty amount. The assessee is entitled to waiver of pre-deposit.


4. The learned Commissioner (Appeals) dismissed the assessee's appeal without giving them a reasonable opportunity of being heard, thereby denying them natural justice also. We, therefore, set aside the impugned order and allow this appeal by way of remand with a direc

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tion to the learned Commissioner (Appeals) to take a decision on merits without insisting on pre-deposit, after giving the assessee a reasonable opportunity of being heard. The stay application also gets disposed of.
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