The Commissioner of Central Vs. Croissants Etc.

The Commissioner of Central vs Croissants Etc.

Type Court Judgment Court Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai Decided Dec 28, 2004

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Citation: sooperkanoon.com/37540
Court: Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai
Judge: A Wadhwa, S T S.S.
Decided On: Dec 28, 2004
Subject: Service Tax

Case Summary

AI-generated summary - not the official court judgment text.

Service Tax

Key legal issue: Service Tax

Parties & Advocates

Appellant / Petitioner

The Commissioner of Central

Respondent

Croissants Etc.

Excerpt

.....memorandum have pleaded that out of the total duty amount of rs. 2,28,609/- duty amounting to rs. 58,788/- was debited in pla against insufficient balance. on the other hand, the respondent's contention is that the said amount was deposited by them subsequently by making the insufficient balance as sufficient. in any case, the entire amount was deposited before issuance of the show cause notice and the ratio of the larger bench decision in the case of machino montell (i) ltd., (2004 (62) rlt 709 (tri. - lb) would apply.3. after going through the impugned order, we find that the appellate authority has set aside the order of the lower authority as bad in law and has allowed the appeal in totality, whereas the respondents have agreed that the duty is required to be paid by them. we also note from the order of the additional commissioner that there was confiscation of vehicle, building, plant and machinery, etc. with an option to the assessee to redeem the same on payment of redemption fine. the commissioner (appeal)'s order does not touch upon the above issue. as such, we are of the view that the entire order needs to be remanded to the original adjudicating authority for fresh decision, in the light of the assessee's admission to pay the duty and for the verification of duty having been paid before the show cause notice and for examining the applicability of the larger bench decision of the tribunal in the case of machino montell (i) ltd., and the confiscation of the vehicle and the plant and machinery, etc.4. in view of our observation above, we set aside the impugned order and remand the matter to the original adjudicating authority for denovo adjudication.

Full Judgment

1. After hearing both sides duly represented by Shri A.K. Sexana, Ld.

JDR and Shri R.C. Sethi, Ld. Advocate, we find that the duty for the first was levied with effect from 01/03/97. The appellants had deposited the amount of duty for the period in question prior to the issuance of the show cause notice. The original adjudicating authority confirmed the demand against the respondents with effect from 01/04/97 and also imposed penalties. On appeal against the above order, the Commissioner (Appeals) set aside the personal penalty and interest on the ground that the entire amount of duty stands paid by the appellants before the issuance of the show cause notice.

2. The revenue in their appeal memorandum have pleaded that out of the total duty amount of Rs. 2,28,609/- duty amounting to Rs. 58,788/- was debited in PLA against insufficient balance. On the other hand, the respondent's contention is that the said amount was deposited by them subsequently by making the insufficient balance as sufficient. In any case, the entire amount was deposited before issuance of the show cause notice and the ratio of the Larger Bench decision in the case of Machino Montell (I) Ltd., (2004 (62) RLT 709 (Tri. - LB) would apply.

3. After going through the impugned order, we find that the appellate authority has set aside the order of the lower authority as bad in law and has allowed the appeal in totality, whereas the respondents have agreed that the duty is required to be paid by them. We also note from the order of the Additional Commissioner that there was confiscation of vehicle, building, plant and machinery, etc. with an option to the assessee to redeem the same on payment of redemption fine. The Commissioner (Appeal)'s order does not touch upon the above issue. As such, we are of the view that the entire order needs to be remanded to the original adjudicating authority for fresh decision, in the light of the assessee's admission to pay the duty and for the verification of duty having been paid before the show cause notice and for examining the applicability of the Larger Bench decision of the Tribunal in the case of Machino Montell (I) Ltd., and the confiscation of the vehicle and the plant and machinery, etc.

4. In view of our observation above, we set aside the impugned order and remand the matter to the original adjudicating authority for denovo adjudication.

Same Court & Year Customs Excise and Service Tax Appellate Tribunal CESTAT Mumb... Same Parties The Commissioner of Central vs Croissants Etc. Same Subject Service Tax Same Judge A Wadhwa, S T S.S.