The Commissioner Of Central Excise And Service Tax-Daman v. Narendra Platic Pvt.Ltd.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CENTRAL EXCISE APPEAL NO. 58 OF 2015 The Commissioner of Central } Excise } Appellant versus Narendra Plastic Pvt. Ltd.

} Respondent Mr. M. Dwivedi i/b. Mr. Pradeep S. Jetly for the appellant.

Mr. Prakash Shah with Mr. Jas Sanghavi i/b. M/s. PDS Legal for the respondent.

CORAM :- S. C. DHARMADHIKARI & B. P. COLABAWALLA, JJ.

DATED :- SEPTEMBER 26, 2016 P.C. :- This appeal by the Revenue challenges the order passed by the Customs, Excise and Service Tax Appellate Tribunal, dated 24th June, 2014 holding that the appeal preferred by the assessee before the Commissioner (Appeals) was maintainable. 2) Since the Revenue is aggrieved by the dismissal by the tribunal of their appeal challenging such finding by the Commissioner (Appeals), it is necessary to clarify as to who is the appellate authority in terms of the factual matrix. The provisional release of seized goods in the factory premises of the

appellant before the tribunal and respondent before us, namely, the assessee led to an order in that behalf, but, which, according to this assessee was contained in a letter dated 10th April, 2014. He granted the request for provisional release of the seized goods by directing the assessee to execute a bond in the sum of Rs.3,49,79,234/- backed by a bank guarantee of 25% of the value as ascertained by the Additional Commissioner (Preventive), Central Excise, Customs and Service Tax, Daman Commissionerate. The bank guarantee was to be of nationalised bank. Naturally, the assessee, aggrieved by such a direction, approached the first appellate authority, namely, the Commissioner of Central Excise and Customs (Appeals), Vapi.

The first appellate authority, by the impugned order, maintained the direction for executing the bond for full value, but reduced the bank guarantee to be furnished in the sum of Rs.12,08,625/-. He rendered a finding that the raw materials, which were imported (most of them) were under advance licence and the finished goods which were produced are manufactured for export. Two contentions were raised by the Revenue. Firstly that the Commissioner (Appeals), the first appellate authority has, at the stage of provisional release of goods, virtually decided the entire matter. By passing a detailed order in favour of the assessee, now nothing survives at a regular adjudication.

and with which we are concerned is that the provisional release order is not appealable. The tribunal's order in the case of Akanksha Syntex Pvt. Ltd. vs. Commissioner of Central Excise, Mumbai1 was relied upon.

3) We are not concerned with the first aspect. The second aspect is that the order passed of this nature is appealable or not. The tribunal, in the impugned order, did not think it necessary to give any detailed finding, but proceeded on the footings that the appeal which was filed before the first appellate authority was maintainable did not deem it proper to interfere with it on merits, save and except modifying the Commissioner (Appeal's) order. Now the bank guarantee that was required to be furnished by the assessee is to cover the sum of Rs.20 lacs. The assessee is not aggrieved by such order. For the first time before us the Revenue raises the contention of non maintainability of the appeal and that too before the Commissioner of Central Excise (Appeals), namely, the first appellate authority.

4) During the pendency of this appeal, our attention, in all fairness, has been invited to a Larger Bench judgment and order of the Customs, Excise and Service Tax Appellate Tribunal, Principal Bench, New Delhi in the case of Gaurav Pharma Ltd. vs. 2013 (289) ELT 186

Commissioner of Central Excise and Service Tax, Rohtak, Delhi2. It is conceded that the legal position is enunciated in this Larger Bench judgment and order and in any event, considering the argument before the Customs, Excise and Service Tax Appellate Tribunal, the appeal before the Commissioner of Customs and Excise (Appeals) the first appellate authority was maintainable. 5) In the given facts and circumstances, we do not examine any larger issue or question. We do not think from the exercise carried out any substantial questions of law arise for determination and consideration of this court. They are kept open for deciding in an appropriate case. The appeal is, therefore, disposed of.

(B.P.COLABAWALLA, J.) (S.C.DHARMADHIKARI, J.) 2015 (326) ELT 561