Rathi Ispat Ltd. vs Commissioner of C. Ex., Ghaziabad

Heard Shri A.P. Mathur for the appellant and Shri B.K.S. Raghuvanshi for the respondents. This appeal u/s 35G of Central Excise Act, 1944 has been filed by the appellant against the judgment and order dated 5-7-2013, passed by the Customs, Excise & Service Tax Appellate Tribunal in Excise Stay Application No. 55128 of 2013 in Appeal No. 55149 of 2013.

By the order impugned the Tribunal directed the appellant to deposit the entire duty amount within a period of eight weeks subject to which, the pre-deposit of interest and penalty shall be waived and its recovery stayed.

With the consent of the learned Counsel for the parties, we dispose of the appeal finally.

Learned counsel for the appellant submits that the Commissioner (Appeals) dismissed the appeal as barred by time and before the Tribunal the issue was as to whether the appeal filed by the appellant was within time which was still to be considered and adjudicated. He submits that the finding in the appellate order in respect of service on the appellant was not correct and it has been challenged by the appellant in the appeal before the Tribunal. He has referred to para. 2.1 of the appellate order wherein it has been observed that the Cenvat credit has wrongly been utilised by the appellant. He submits that the allegation that the manufactured goods were never received by the appellant were all incorrect. He submits that all these issues have to be gone into and decided in the appeal and the Tribunal committed error in not waiving the pre-deposit of interest and penalty.

Shri B.K.S. Raghuvanshi appearing for the respondents submitted that the Commissioner (Appeals) has rightly dismissed the appeal as barred by time since the notice was pasted on the conspicuous part of the factory premises and it shall be deemed to be in proper mode and recognised under the Rules.

Considering the facts of the present case and also the fact that the issues have to be gone into in appeal and since the appeal was dismissed only on the ground that it was barred by time, we are of the view that ends of justice be served in waiving of the pre-deposit of duty up to 50 per cent.

Subject to depositing 50 per cent of the entire duty within four weeks from today, the pre-deposit of the interest and penalty shall be waived and its recovery be stayed.

We, however, observe that on deposit of the aforesaid amount the appellate authority shall proceed and decide the appeal of the appellant expeditiously. With the aforesaid observation, the appeal is disposed of.