2013 (12) TMI 1338 - AT - Central Excise

Maintainability of Appeal Held that - The order was communicated to the appellants with a preamble in which the appellants were informed that an appeal against said order lies to Customs, Excise and Service Tax Appellate Tribunal, New Delhi - now Revenue cannot claim that no appeal can be filed against the order before the Tribunal - the demand has been confirmed on addition of pre-delivery inspection charges and also after sale service charges collected by the dealers and the issue was decided against them holding that duty is chargeable on the pre-delivery inspection charges and after sale service charges - The appellants had filed an appeal before the Hon ble Supreme Court and the matter is pending for decision in the Supreme Court - To keep the matter alive on merits, the appellants have right to file an appeal before this Tribunal against the order - the request of the Revenue for non-maintainability of appeal cannot be accepted. Waiver of Pre-deposit Payment of Interest Held that - The appellants have not claimed any financial hardship and the claim for financial hardship is a determining factor for deciding the quantum of pre-deposit and not for giving time for making pre-deposit - the contention of the Revenue that since no financial hardship was claimed by the appellants, ten weeks time was not required to be given to them cannot be accepted - The appellant has undertaken to make the payment of interest payable on the confirmed duty in the time limit given by the Tribunal in the stay order.

Summary

Issues Involved:
Appeal maintainability under Section 35B of the Central Excise Act, Financial hardship for pre-deposit, Payment of interest on confirmed duty amount.

Analysis:

1. Appeal Maintainability under Section 35B:
The Revenue contended that the appeal filed by the respondent was not maintainable under Section 35B of the Central Excise Act as the respondents had accepted the re-quantification of duty and had no grievance against it. The Tribunal noted that the appellants had accepted the re-quantification of duty but were challenging the inclusion of pre-delivery inspection charges and after-sale service charges, which was pending in the Supreme Court. The Tribunal held that since the appellants had not accepted the order of the Commissioner on merit, their appeal was maintainable under Section 35B of the Act. The Tribunal rejected the Revenue's argument of non-maintainability of the appeal.

2. Financial Hardship for Pre-Deposit:
The Revenue argued that the appellants were not entitled to ten weeks' time for depositing the confirmed duty amount as there was no financial hardship claimed by them. The Tribunal clarified that the claim for financial hardship was relevant for determining the quantum of pre-deposit, not for granting time for making the pre-deposit. The Tribunal noted that the appellants had deposited the duty within one week of the order, indicating no financial hardship. Therefore, the Tribunal rejected the Revenue's contention regarding the time granted for pre-deposit.

3. Payment of Interest on Confirmed Duty Amount:
The appellant's advocate undertook to make the payment of interest on the confirmed duty amount within the time frame given by the Tribunal in the stay order. The Tribunal accepted the undertaking and did not pass any further orders on the issue of interest. The miscellaneous application was disposed of based on the appellant's undertaking regarding the payment of interest.

In conclusion, the Tribunal upheld the maintainability of the appeal under Section 35B, rejected the Revenue's argument regarding financial hardship for pre-deposit, and accepted the appellant's undertaking for the payment of interest on the confirmed duty amount.