Hon'ble Suneet Kumar,J.
Heard Shri S.D.Singh, learned counsel for the appellant and Shri B.K.S Raghuvanshi, learned counsel appearing for the department.
This appeal under section 35G of the Central Excise Act, 1944 has been filed by the appellant against the order dated 14.3.2013 passed by Customs, Excise and Service Tax Appellate Tribunal by which while disposing of the stay application, the Tribunal directed to deposit 50% of the duty component assessed by the order impugned within six weeks failing which interim order shall stand dissolved.
The appeal has been preferred on three substantial questions of law as has been framed at page 25-26 of the paper book which are to the following effect:
1. Whether, the Central Excise & Service Tax Appellate Tribunal has failed to exercise its jurisdiction in as much as it has not considered the prima-facie case of the appellant pleaded and pressed by the appellant both on account of demand being time barred and otherwise meritless?
2. Whether, in view of the strong prima-facie case pleaded and established before the Central Excise and Service Tax Appellate Tribunal, the appellant's appeal ought to be heard by that Tribunal without requiring pre-deposit of any amount towards disputed demand of duty?
3. Whether, the Tribunal has utterly failed to exercise its jurisdiction and/or has committed manifest error of law in exercise of its judicial discretion in failing to completely/fully waive requirement of pre-deposit of disputed demand of duty?
Shri S.D.Singh, learned counsel for the appellant in support of the appeal contended that the Tribunal did not advert to prima facie case of the appellant. He submit that appeallant had made out a case in so far as invoking of extended period of limitation is concerned. It is submitted that appellant has already deposited duty from 1.4.2010. It is submitted that the duty on printed laminated plastic sheet became chargeable on account of amendment made on 10.5.2008. He submit that earlier to that the department itself gave the benefit to the appellant.
The appellant has been given the benefit of the judgment of the Apex Court in Metlex (I) Pvt.Ltd. versus Commissioner of C.Ex.New Delhi 2004(165) E.L.T.129 (S.C). He submit that it was not a case of suppression on the part of the appellant so as to permit invocation of extended period of limitation.
He submit that the stay/dispension of pre deposit is dependent on facts of each case. He has placed reliance on the judgment of the Supreme Court reported in 2008(12) S.T.R 104 (S.C) Benara Valves Ltd. versus commissioner of Central Excise with regard to his submission of non invocation of extended period of limitation, reliance has been placed on the judgment of the Apex Court on (2009) 12 SCC 294 Nestle India Limited versus Commissioner of Central Excise, Chandigarh.
Shri B.K.S Raghuvanshi, learned counsel appearing for the department submitted that the extended period of limitation has rightly been invoked. He had referred paragraph 5.10 of the order of the Commissioner Central Excise.
The learned counsel for the appellant has placed before us a chart in tabular form giving the details of the period, the duty on Printed Laminated Plastic Film. He submits that in view of the fact that extended period of limitation could not have been availed at best appellant was liable to pay duty on Printed Laminated Plastic Film for the period 2009-2010.
We have considered the submission of the learned counsel for the parties and perused the record.
The principles for stay/dispension of pre deposit have been clearly laid down by the Apex Court in Benara Valves Ltd. versus Commissioner of Central Excise (Supra) observed in paragraph 8 of the judgment.
"8.It is true that on merely establishing a prima facie case, interim order of protection should not be passed. But if on a cursory glance it appears that the demand raised has no leg to stand, it would be undesirable to require the assessee to pay full or substantive part of the demand. Petitions for stay should not be disposed of in a routine matter unmindful of the consequences flowing from the order requiring the assessee to deposit full or part of the demand. There can be no rule of universal application in such matters and the order has to be passed keeping in view the factual scenario involved. Merely because this Court has indicated the principles that does not give a license to the forum/authority to pass an order which cannot be sustained on the touchstone of fairness, legality and public interest. Where denial of interim relief may lead to public mischief, grave irreparable private injury or shake a citizens' faith in the impartiality of public administration, interim relief can be given."
The Tribunal in its order has also not said that the appellant has no prima facie case. However, the fact that Tribunal itself has waived the deposit of 50% of the duty component indicate that Tribunal was satisfied that there is some substance in the appeal.
The submission raised by the learned counsel for the appellant that in the facts of the prsent case, extended period of limitation could not have been invoked needs consideration by the Tribunal in view of the law laid doew by the Apex Court in Nestle India Ltd. The Apex Court in Nestle India (Supra) has laid down in paragraph 24 which is quoted below:
"24. Secondly, as held in the judgement of this Court in Padmini Products v.CCE as well as in CCE versus Chemphar Drugs & Liniments extended period of limitation is applicable only when there is some positive act other than mere in action or failure on the part of the manufacturer. There must be conscious or deliberate withholding of information by the manufacturer to invoke larger period of limitation."
However, looking to the fact that from 10.5.2008, according to the own submission of the learned counsel for the appellant, duty became payable on Printed Laminated Plastic, the present was not a case of waiver of the entire amount.
In the facts of the present case, we are of the view that interest of justice be served in modifying the order of the Tribunal dated 14.3.2013 to the effect that subject to appellant depositing 25% of the duty component assessed by the order passed by the Commissioner and compounding interest under section 11-AB of the Ac within four weeks from today, no further proceedings for recovery of amount shall take place. On deposit of the aforesaid amount, appeal filed by the appellant shall be heard and decided on merits expeditiously.
In above view of the matter, the question nos. 1 & 3 is answered in favour of the appellant and question no. 2 is answered in favour of the department. The appeal is disposed of accordingly.
Order Date :- 1.4.2014 IB