Skol Breweries Ltd. Vs. Commissioner of Central Excise and Customs - Court Judgment

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CourtCustoms Excise and Service Tax Appellate Tribunal CESTAT Mumbai
Decided OnMay-29-2012
Case Number APPLICATION ST/Stay-529/2012 APPEAL NO: ST/134/2012[Arising out of Order-in-Appeal No: AGS(13)
Judge THE HONOURABLE MR. ASHOK JINDAL, MEMBER (JUDICIAL) & THE HONOURABLE MR. P.R. CHANDRASEKHARAN, MEMBER (TECHNICAL)
AppellantSkol Breweries Ltd.
RespondentCommissioner of Central Excise and Customs
Advocates:For the Appellant : Shri Bharat Raichandani, Advocate. For the Respondent : A.K. Prabhakar, Superintendent (AR).
Excerpt:
ashok jindal: the appellant are in appeal along with stay application for staying the impugned demands under the impugned order wherein their appeal has been dismissed for non-compliance with the provisions of section 35f of the central excise act, 194 read with section 83 of the finance act, 1994. 2. after hearing both the sides, we observe that the commissioner (appeals) has dismissed the appeal for non-compliance with the stay order dated 19/12/2011 without going into the merits of the case. therefore, considering the submissions made by both the sides, we waive the requirement of pre-deposit and are of the opinion that the matter should go back to the commissioner (appeals) to decide the stay application on merits and thereafter pass an appropriate order. 3. we have gone through the stay order passed by the commissioner (appeals) wherein the appellant has challenged the jurisdiction of the commissioner who has adjudicated the matter, in view of the situation where they have obtained centralised registration and as per the guidelines issued by the cbec through circular no. 137/50/2007-cx.4 dated 16/03/2007. but the commissioner (appeals) decided the stay application on the premise that the appellant has not pleaded any financial hardship. therefore, the requirement to make pre-deposit of the entire dues confirmed against them is not proper in the eyes of law. while deciding the stay application it is to be borne in mind whether the assessee is having any prima facie case, whether balance of convenience lies in their favour or not, and thereafter, it is to be seen whether irreparable loss of revenue will be caused to either sides. the three basic principles have not been considered and he has asked them to make a pre-deposit of the entire demands on the plea that they have not pleaded financial hardship. instead of going through the financial hardship first, while deciding the stay application, it is the duty of the commissioner (appeals) to consider whether the adjudicating authority is having the jurisdiction to decide the issue or not, which was not considered. thereafter, the commissioner (appeals) has dismissed the appeal for non-compliance. 4. as the stay application has not been decided on merits of the case, therefore, the order of dismissal of the appeal is not sustainable in the eyes of law. therefore, we set aside both the stay order as well as the impugned order and remand the matter back to the commissioner (appeals) to hear the appellant on their stay application first on merits and, thereafter, to decide the issue in accordance with law. 5. the appeal as well as the stay application are disposed of in the above terms.
Judgment:

Ashok Jindal:

The appellant are in appeal along with stay application for staying the impugned demands under the impugned order wherein their appeal has been dismissed for non-compliance with the provisions of Section 35F of the Central Excise Act, 194 read with Section 83 of the Finance Act, 1994.

2. After hearing both the sides, we observe that the Commissioner (Appeals) has dismissed the appeal for non-compliance with the stay order dated 19/12/2011 without going into the merits of the case. Therefore, considering the submissions made by both the sides, we waive the requirement of pre-deposit and are of the opinion that the matter should go back to the Commissioner (Appeals) to decide the stay application on merits and thereafter pass an appropriate order.

3. We have gone through the stay order passed by the Commissioner (Appeals) wherein the appellant has challenged the jurisdiction of the Commissioner who has adjudicated the matter, in view of the situation where they have obtained centralised registration and as per the guidelines issued by the CBEC through Circular No. 137/50/2007-CX.4 dated 16/03/2007. But the Commissioner (Appeals) decided the stay application on the premise that the appellant has not pleaded any financial hardship. Therefore, the requirement to make pre-deposit of the entire dues confirmed against them is not proper in the eyes of law. While deciding the stay application it is to be borne in mind whether the assessee is having any prima facie case, whether balance of convenience lies in their favour or not, and thereafter, it is to be seen whether irreparable loss of revenue will be caused to either sides. The three basic principles have not been considered and he has asked them to make a pre-deposit of the entire demands on the plea that they have not pleaded financial hardship. Instead of going through the financial hardship first, while deciding the stay application, it is the duty of the Commissioner (Appeals) to consider whether the adjudicating authority is having the jurisdiction to decide the issue or not, which was not considered. Thereafter, the Commissioner (Appeals) has dismissed the appeal for non-compliance.

4. As the stay application has not been decided on merits of the case, therefore, the order of dismissal of the appeal is not sustainable in the eyes of law. Therefore, we set aside both the stay order as well as the impugned order and remand the matter back to the Commissioner (Appeals) to hear the appellant on their stay application first on merits and, thereafter, to decide the issue in accordance with law.

5. The appeal as well as the stay application are disposed of in the above terms.