2013 (12) TMI 934 - HC - Central Excise

Order of pre-deposit of 25 % of the duty challenged - Percentage of burning loss claimed by the appellant rejected Held that - in another matter Commissioner (Appeals), Customs and Central Excise observed that, burning loss of 4.92% is within the norms of 2 to 6-7% prescribed by the National Institute of Secondary Technology - thus, the Tribunal may be directed to reconsider the appellant s prayer for waiver of the condition of pre-deposit - the wastage and burning loss claimed by the appellant is in the permissible limit and demand of duty raised in the impugned order is not sustainable thus, imposition of interest and penalty is irrelevant order set aside and the matter remitted back to the CESTAT to consider the application for pre-deposit Decided in favour of Appellant.

Summary

Issues involved:
Adjudication of the same questions of law and fact in three appeals challenging the order of the Customs Excise and Service Tax Appellate Tribunal (CESTAT) regarding the pre-deposit condition.

Analysis:
The appellant contested the order demanding central excise duty, arguing that the burning loss falls within prescribed norms, citing a similar case decided by the Commissioner (Appeals) in favor of the appellant. The Tribunal directed the appellant to deposit 25% of the duty demanded while staying the balance amount. However, the High Court noted that in a comparable case, the Commissioner (Appeals) had ruled in favor of the appellant, emphasizing that the burning loss was within permissible limits set by technical institutions. The High Court acknowledged the similarity in disputes and decided to remit the matter back to the CESTAT for reconsideration of the pre-deposit condition in light of the Commissioner's opinion.

The key contention revolved around the burning loss claimed by the appellant, which was rejected by the Tribunal, leading to the appeal and request for waiver of the pre-deposit condition. The High Court highlighted the significance of the Commissioner's decision in a similar case, where the burning loss was deemed within acceptable norms, rendering the demand for duty unsustainable. The High Court emphasized the relevance of technical norms and expert opinions in determining the legitimacy of the appellant's claim, ultimately leading to the decision to set aside the Tribunal's order and refer the matter back for fresh consideration.

In conclusion, the High Court allowed the appeals, overturned the impugned orders, and instructed the CESTAT to reevaluate the application for pre-deposit, considering the opinion expressed by the Commissioner (Appeals) in a related case. The parties were directed to appear before the CESTAT for further proceedings on the specified date, ensuring a fair and thorough examination of the pre-deposit condition in line with legal principles and technical norms.