CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
EAST ZONAL BENCH: KOLKATA
STAY PETITION NO.E/S/984/2012
AND
EXCISE APPEAL NO.E/A/602/2012
(ARISING OUT OF ORDER-IN-ORIGINAL NO.2/DENOVO/COMMR/CE/KOL-III/2012-13 DATED 06.06.2012 PASSED BY COMMISSIONER OF CENTRAL EXCISE, KOLKATA-III)
FOR APPROVAL AND SIGNATURES OF
DR. D.M.MISRA, HON BLE JUDICIAL MEMBER
DR. I.P.LAL, HON BLE 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?
M/S. NICCO CORPORATION LTD.
APPLICANT(S)/APPELLANT (S)
VERSUS
COMMISSIONER OF CENTRAL EXCISE, KOLKATA-III
...RESPONDENT (S)
APPEARANCE:
SHRI A.D.RAY, ADVOCATE ASSISTED BY SHRI SOUMYAJIT MISHRA, ADVOCATE FOR THE APPLICANT(S)/APPELLANT(S);
SHRI S.MISRA, A.R. (ADDL. COMMR.) FOR THE REVENUE.
CORAM:
DR. D.M.MISRA, HON BLE JUDICIAL MEMBER
DR. I.P.LAL, HON BLE TECHNICAL MEMBER
Date of Hearing & Decision:01.07.2014
ORDER NO.FO/A/75405/2014
Per Dr. D.M.Misra
This is an Application seeking waiver of predeposit of of duty of Rs.4.95 crore and equal amount of penalty imposed under the erstwhile Rule 173Q of the Central Excise Rules, 1944 read with Section 11AC of the Central Excise Act, 1944.
2. At the outset, ld. Advocate for the Applicant, Shri A.D.Ray submits that the present demand has been confirmed, while adjudicating three show cause notices first one being issued on 22.02.2000 for the period, September, 1997 to September, 1999; second on 01.06.2000 for the period, November, 1999 to February, 2000; and third one being issued on 02.01.2002 for the period, March, 2000. The ld. Advocate has brought to our notice that all these Show Cause Notices were issued on the basis of CERA Audit Objection, communicated to them on 10.12.1998, vide letter C.No.GL-3(a)/I/NICCO/R-IV/BKP/98/566 (Annexure: A at page 16 of the Appeal Memorandum). He further submits that the Objection referred to at para 1 of the said letter, more or less in verbatim reproduced in the said Show Cause Notices. He further submits that the Department had communicated to them, vide letters dated 08.06.2011 and 30.06.2011 (pages 112 and 113 of the Appeal Paperbook) intimating that the CERA Objection under S.F. No.98-99/29 had been dropped and communicated to the Applicant saying that they may withdraw the Writ Petition pending before the Hon ble High Court. It is the submission of the ld. Advocate that even though this point was raised before the ld. Adjudicating Authority, he had neither accepted the same nor recorded any finding on the implication of dropping of the Objection by CERA. He also submits that once the Audit Objection had been dropped, therefore, the basis of Show Cause Notices no longer survives and becomes void. Therefore, the ld. Adjudicating Authority should not have confirmed the demand.
3. Ld. AR for the Revenue submits that since there is no reference in the respective Show Cause Notices that the Notices were issued on the basis of CERA Audit Objection, therefore, it becomes extraneous and should not be entertained. It is his submission that the ld. Commissioner has not recorded any finding on the same, as it was felt not necessary. However, he has no objection in remanding the case.
4. After hearing both sides for some times, we find that the Appeal itself, could be disposed off, at this stage. Accordingly, after waiving the requirement of predeposit, we take up the Appeal for disposal, with the consent of both sides.
5. Prima facie, we find that even though there is no specific mention of CERA Audit Objection under the SF No.98-99/29 in the respective show cause notices, but the subject matter in the respective notices were taken from the said CERA Audit Objection, a copy of which is enclosed by the Appellant at page 16 to the Appeal Paperbook. The Appellant had raised the issue before the ld. Adjudicating Authority, advancing their submission that once the CERA Audit Objection has been dropped, therefore, the Show Cause Notices have no merit. The ld. Commissioner, even though recorded this submission at page 4 of the impugned Order, however, on going through the findings of the ld. Adjudicating Commissioner, we observe that he has not recorded any reasoning as to why the withdrawal of Audit Objection of CERA could not be a ground for considering the plea of the Appellant for dropping of the demand notices. The ld. AR for the Revenue has argued that confirmation and/or dropping of the Audit Objection of CERA is not binding on the ld. Adjudicating Authority, as he exercises a quasi-judicial power. We have no hesitation to observe that the ld. Adjudicating Authority need not be influenced by such facts, but it is necessary that the ld. Commissioner should record a finding on the said facts. Therefore, in our opinion, it is a fit case to remit the matter to the ld. Commissioner for deciding the issue afresh, taking into consideration various communications referred to by the Appellant in Appeal Paperbook in support of their plea that once the basic issue raised by the CERA Audit had been closed, therefore, the Show Cause Notices are also liable to be dropped. Needless to say, a reasonable opportunity of hearing be granted to the Appellant. All issues are kept open. Both sides are at liberty to adduce evidences in their favour. The Appeal is thus allowed by way of remand. Stay Petition disposed off.
(Pronounced & dictated in the open court.)
SD/-08.07.14 SD/07.07.14
(I.P.LAL) (D.M.MISRA)
MEMBER (TECHNICAL) MEMBER (JUDICIAL)
DUTTA/
2
E/A/602/2012
2
EAST ZONAL BENCH: KOLKATA
STAY PETITION NO.E/S/984/2012
AND
EXCISE APPEAL NO.E/A/602/2012
(ARISING OUT OF ORDER-IN-ORIGINAL NO.2/DENOVO/COMMR/CE/KOL-III/2012-13 DATED 06.06.2012 PASSED BY COMMISSIONER OF CENTRAL EXCISE, KOLKATA-III)
FOR APPROVAL AND SIGNATURES OF
DR. D.M.MISRA, HON BLE JUDICIAL MEMBER
DR. I.P.LAL, HON BLE 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?
M/S. NICCO CORPORATION LTD.
APPLICANT(S)/APPELLANT (S)
VERSUS
COMMISSIONER OF CENTRAL EXCISE, KOLKATA-III
...RESPONDENT (S)
APPEARANCE:
SHRI A.D.RAY, ADVOCATE ASSISTED BY SHRI SOUMYAJIT MISHRA, ADVOCATE FOR THE APPLICANT(S)/APPELLANT(S);
SHRI S.MISRA, A.R. (ADDL. COMMR.) FOR THE REVENUE.
CORAM:
DR. D.M.MISRA, HON BLE JUDICIAL MEMBER
DR. I.P.LAL, HON BLE TECHNICAL MEMBER
Date of Hearing & Decision:01.07.2014
ORDER NO.FO/A/75405/2014
Per Dr. D.M.Misra
This is an Application seeking waiver of predeposit of of duty of Rs.4.95 crore and equal amount of penalty imposed under the erstwhile Rule 173Q of the Central Excise Rules, 1944 read with Section 11AC of the Central Excise Act, 1944.
2. At the outset, ld. Advocate for the Applicant, Shri A.D.Ray submits that the present demand has been confirmed, while adjudicating three show cause notices first one being issued on 22.02.2000 for the period, September, 1997 to September, 1999; second on 01.06.2000 for the period, November, 1999 to February, 2000; and third one being issued on 02.01.2002 for the period, March, 2000. The ld. Advocate has brought to our notice that all these Show Cause Notices were issued on the basis of CERA Audit Objection, communicated to them on 10.12.1998, vide letter C.No.GL-3(a)/I/NICCO/R-IV/BKP/98/566 (Annexure: A at page 16 of the Appeal Memorandum). He further submits that the Objection referred to at para 1 of the said letter, more or less in verbatim reproduced in the said Show Cause Notices. He further submits that the Department had communicated to them, vide letters dated 08.06.2011 and 30.06.2011 (pages 112 and 113 of the Appeal Paperbook) intimating that the CERA Objection under S.F. No.98-99/29 had been dropped and communicated to the Applicant saying that they may withdraw the Writ Petition pending before the Hon ble High Court. It is the submission of the ld. Advocate that even though this point was raised before the ld. Adjudicating Authority, he had neither accepted the same nor recorded any finding on the implication of dropping of the Objection by CERA. He also submits that once the Audit Objection had been dropped, therefore, the basis of Show Cause Notices no longer survives and becomes void. Therefore, the ld. Adjudicating Authority should not have confirmed the demand.
3. Ld. AR for the Revenue submits that since there is no reference in the respective Show Cause Notices that the Notices were issued on the basis of CERA Audit Objection, therefore, it becomes extraneous and should not be entertained. It is his submission that the ld. Commissioner has not recorded any finding on the same, as it was felt not necessary. However, he has no objection in remanding the case.
4. After hearing both sides for some times, we find that the Appeal itself, could be disposed off, at this stage. Accordingly, after waiving the requirement of predeposit, we take up the Appeal for disposal, with the consent of both sides.
5. Prima facie, we find that even though there is no specific mention of CERA Audit Objection under the SF No.98-99/29 in the respective show cause notices, but the subject matter in the respective notices were taken from the said CERA Audit Objection, a copy of which is enclosed by the Appellant at page 16 to the Appeal Paperbook. The Appellant had raised the issue before the ld. Adjudicating Authority, advancing their submission that once the CERA Audit Objection has been dropped, therefore, the Show Cause Notices have no merit. The ld. Commissioner, even though recorded this submission at page 4 of the impugned Order, however, on going through the findings of the ld. Adjudicating Commissioner, we observe that he has not recorded any reasoning as to why the withdrawal of Audit Objection of CERA could not be a ground for considering the plea of the Appellant for dropping of the demand notices. The ld. AR for the Revenue has argued that confirmation and/or dropping of the Audit Objection of CERA is not binding on the ld. Adjudicating Authority, as he exercises a quasi-judicial power. We have no hesitation to observe that the ld. Adjudicating Authority need not be influenced by such facts, but it is necessary that the ld. Commissioner should record a finding on the said facts. Therefore, in our opinion, it is a fit case to remit the matter to the ld. Commissioner for deciding the issue afresh, taking into consideration various communications referred to by the Appellant in Appeal Paperbook in support of their plea that once the basic issue raised by the CERA Audit had been closed, therefore, the Show Cause Notices are also liable to be dropped. Needless to say, a reasonable opportunity of hearing be granted to the Appellant. All issues are kept open. Both sides are at liberty to adduce evidences in their favour. The Appeal is thus allowed by way of remand. Stay Petition disposed off.
(Pronounced & dictated in the open court.)
SD/-08.07.14 SD/07.07.14
(I.P.LAL) (D.M.MISRA)
MEMBER (TECHNICAL) MEMBER (JUDICIAL)
DUTTA/
2
E/A/602/2012
2
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