2011 (4) TMI 1092 - AT - Central Excise

Pre-deposit - appeal rejected on the ground that the appellants did not deposit 50% of the amount demanded as ordered by him in the stay order - appellants came in appeal before this Tribunal and this Tribunal also directed the appellants to pre-deposit 50% of the amount demanded and 50% of the penalty imposed - appellants filed a Writ Petition and the Hon ble High Court, set aside the directions given by the Tribunal for pre-deposit and directed that the appeals be heard without insisting on any pre-deposit - Held that - during the course of hearing, it was found that the Order-in-Appeal was not passed on merits but appeals were rejected for non-compliance with the stay order. In the absence of Order-in-Appeal on merits, the proper course available to this Tribunal is to remand the matter to the Commissioner (Appeals), matter remanded to the Commissioner (Appeals), without insisting on any pre-deposit

Summary

Issues:
1. Non-compliance with the provisions of Section 35 of the Central Excise Act, 1944 regarding pre-deposit.
2. Appeal rejection due to non-compliance with the stay order.
3. Lack of Order-in-Appeal on merits.
4. Remand of the matter to the Commissioner (Appeals) for decision on merits without pre-deposit.

Analysis:

1. The case involved the appellant, a company engaged in manufacturing steel products, facing proceedings for allegedly availing CENVAT credit based on invoices without receiving the goods. The Commissioner (Appeals) rejected the appeal for not depositing 50% of the demanded amount as per the stay order. The Tribunal also directed the appellant to pre-deposit, which was challenged in a Writ Petition before the High Court, resulting in the High Court setting aside the pre-deposit requirement.

2. During the proceedings, it was noted that the Order-in-Appeal did not address the merits of the case but rejected the appeal due to non-compliance with the stay order. The Tribunal acknowledged the High Court's direction to decide the appeal on its merits but concluded that since no issues were decided in the Order-in-Appeal, the proper course was to remand the matter to the Commissioner (Appeals) for a decision on merits.

3. The Tribunal interpreted deciding the appeal on its own merit as examining all issues and deciding based on merits. Given the absence of a decision on merits in the Order-in-Appeal, the Tribunal decided to remand the matter to the Commissioner (Appeals) for a fresh consideration on merits, providing both appellants with a reasonable opportunity to present their case without requiring any pre-deposit.

4. Ultimately, the Tribunal remanded the matter to the Commissioner (Appeals) with a directive to decide the issues on merits for both appellants, emphasizing the need for a fair opportunity to present their case without the pre-deposit requirement, as pronounced in court.