2012 (6) TMI 195 - AT - Central Excise

Waiver of pre deposit of penalty as applicant has deposited the total duty involved - appeal filed by the appellant dismissed - Held that - As the delay involved is only 28 days which is within the condonable period of 30 days, therefore, the delay is condoned - Commissioner (Appeals) has not decided the case on merit the case is remanded back without insisting any pre deposit - in favour of assessee by way of remand.

Summary

Issues:
1. Waiver of predeposit of penalty.
2. Delay in filing the appeal.
3. Dismissal of appeal by the Commissioner (Appeals).
4. Remand of the case for deciding on merit without predeposit.

Waiver of Predeposit of Penalty:
The applicant sought waiver of predeposit of penalty of Rs.2,83,952, arguing that they had already deposited the total duty involved in the case. The Tribunal found that the appeal could be disposed of at that stage, and with the consent of both sides, waived the requirement of predeposit of penalty, allowing the appeal to proceed for disposal.

Delay in Filing the Appeal:
The Commissioner (Appeals) had dismissed the appeal due to a delay of 28 days in filing. The appellant's consultant explained that the delay was caused by confusion regarding the jurisdiction of filing the appeal, as their unit was located in Jamshedpur, and there was no Commissioner at Ranchi during that period. The Tribunal accepted the explanation, condoned the delay of 28 days, as it fell within the condonable period of 30 days.

Dismissal of Appeal by the Commissioner (Appeals):
It was noted that the Commissioner (Appeals) had not decided the case on merit. Therefore, the Tribunal remanded the case back to the Commissioner to decide on merit without insisting on any predeposit. Both sides were to be given a reasonable opportunity of hearing. The appeal was disposed of by way of remand, and the stay petition was also disposed of accordingly.

This judgment by the Appellate Tribunal CESTAT, Kolkata addressed the issues of waiver of predeposit of penalty, delay in filing the appeal, and the dismissal of the appeal by the Commissioner (Appeals). The Tribunal allowed the appeal to proceed without predeposit, condoned the delay in filing due to jurisdictional confusion, and remanded the case for a decision on merit without insisting on predeposit, ensuring both parties were given a fair hearing.