TMI Blog2013 (9) TMI 618X X X X Extracts X X X X X X X X Extracts X X X X ..... reference. The statement indicates the supply of three ingredients separately by M/s. Sun Metal Industries, Ahmedabad, to the second job-worker M/s. Gujarat Die casting Industries, Surat, even though the final product is an alloyed product of Zinc, Aluminum and Magnesium. These statements only give the details of the movement of the inputs and semi-processed material from one job-worker to another and lastly to the assessee - Appellants had produced the documentary evidence in the form of delivery challans of receipt of the casting from the second job worker from M/s. Gujarat Die Casting Industries, Surat. The said delivery challans indicate the quantity dispatched to the Appellant – Decided in favor of Assessee. Interest on the amount of pre-deposit which were ordered by the Tribunal and the Commissioner (Appeals) for hearing and disposing their appeal – Held that:- Impugned orders in the earlier two rounds of litigation, were set aside by the Tribunal and the matter remanded back to the lower authorities would mean that the appellant is entitled for refund of the amounts which were ordered as pre-deposit. In this case, it is undisputed that an amount of Rs. 4,50,000/- was dire ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Appeals) vide OIA dated 17/18-1-2000 rejected the appeal of the appellant and waived the penalty of Rs. 1 lakh imposed vide OIO dated 31-12-1997. The appellant preferred an appeal before CESTAT. The CESTAT vide order dated 30-8-2000 allowed the appeal, set aside the OIA dated 18-1-2000 and remanded the matter to the original adjudicating authority. The appellant vide letter dated 30-7-2001 requested the Assistant Commissioner, to return the pre-deposited amount of Rs. 3,50,000/-, which was due from 30-11-2000 after three months from CESTAT order. The adjudicating authority vide OIO dated 9-8-2001, in remand proceedings, confirmed the duty amounting to Rs. 6,34,420/- and appropriated the amount of Rs. 3,50,000/- against the confirmed duty. The appellant preferred an appeal before Commissioner (Appeals), Vadodara. The Commissioner (Appeals), vide OIA dated 23-4-2003 rejected the appeal of the appellant and confirmed the demand amounting to Rs. 6,34,420/-. The appellant preferred an appeal before CESTAT. The CESTAT vide stay order dated 30-10-2003 directed to deposit of Rs. 1,00,000/-. Accordingly the respondent has deposited the same vide Challan No. 10, dated 24-11-2003. The CESTA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the assessee could not produce any additional evidences and more specifically to produce transport documents for the goods received from second job worker located at Surat. It is her submission that as the inputs in question were received in the factory and sent directly to job worker, it is correct on the part of the adjudicating authority, directing the assessee to produce transportation documents of the receipt of processed goods to ensure that the assessee has received the goods back after processing. It is her submission that the assessee was not able to satisfy the jurisdictional Assistant Commissioner on this point. Hence the order of the Commissioner (Appeals) setting aside the adjudicating authority s order is not in consonance with the order of the remand of the Tribunal. 7. Ld. consultant appearing on behalf of the assessee would submit that as per the provisions of erstwhile Rule 57(F)(ii) (iii) of the Central Excise Rules, 1944, the appellant had to follow a procedure of sending job work challans after giving an intimation to the authorities. It is his submission that the appellant did so and followed the procedures and produced the job work challans as require ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce. The statement indicates the supply of three ingredients separately by M/s. Sun Metal Industries, Ahmedabad, to the second job-worker M/s. Gujarat Die casting Industries, Surat, even though the final product is an alloyed product of Zinc, Aluminum and Magnesium. These statements only give the details of the movement of the inputs and semi-processed material from one job-worker to another and lastly to the assessee. In view of above findings it is clear that the Appellants had produced the documentary evidence of receipt of the casting from the second job worker from M/s. Gujarat Die Casting Industries, Surat. The said delivery challans indicate the quantity dispatched to the Appellant. Thus, it is established that the 2nd job worker M/s. Gujarat Die Casting Industries has sent the goods to the Appellants. Ideally speaking this issue would have ended here. However, it appears that the lower authority has proceeded and demanded the transport documents, which do not appear to be relevant in this case. It is revealed from the above said facts, that the Appellant has produced the required details in reference to the direction given by the Hon ble Tribunal. The Appellant has furnis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted the assessee s claim for interest on the amount of pre-deposit which were ordered by the Tribunal and the Commissioner (Appeals) for hearing and disposing their appeal. 15. After hearing both the sides for some time on the issue, I find that the first appellate authority while concurring that the adjudicating authority s view that the appellant is not entitled for any interest on the amount of the pre-deposit which were made by him has recorded the following : 6.1 With regard to the (i) issue, namely, whether the amount paid by the Appellants as per direction of the stay order and while filing the appeals are to be treated as payment of duty or as a deposit . In this regard, it is better to refer the provisions of Section 35F of the Central Excise Act, 1944. SECTION 35F. Deposit, pending appeal, of duty demanded or penalty levied. - Where in any appeal under this Chapter, the decision or order appealed against relates to any duty demanded in respect of goods which are not under the control of Central Excise authorities or any penalty levied under this Act, the person desirous of appealing against such decision or order shall, pending the appeal, deposit with the adj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th regard to (ii) issue as above, interest on pre-deposit the amount Rs. 4,50,000/- does not arise as the Adjudicating Authority has confirmed the demand amounting to Rs. 6,34,420/- and appropriated the amount of deposit Rs. 4,50,000/- against the said demand. As the matter has been disposed of by way of appropriation the pre-deposit the further consequential benefits does not arise. 16. I find that the first appellate authority has erred inasmuch as this order vide which he has concurred with the views of the adjudicating authority that the adjudicating authority has confirmed the demands is way off the target, as very same appellate authority vide his order-in-appeal dated 8-12-2010, has set aside the demands which has been confirmed by the adjudicating authority. In my view, impugned orders in the earlier two rounds of litigation, were set aside by the Tribunal and the matter remanded back to the lower authorities would mean that the appellant is entitled for refund of the amounts which were ordered as pre-deposit. In this case, it is undisputed that an amount of Rs. 4,50,000/- was directed to be deposited by the higher judicial foras, for hearing and disposing the appeal, wh ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
