CCE Vs. TAMILNADU ASBESTOS (PIPES)

JUDGEMENT

(1.) THIS is an appeal filed by the Commissioner of Central Excise, Trichy against the order of the Commissioner (Appeals) Trichy along with an application for condonation of delay of 37 days in filing the appeal. The facts of the case are that the original authority had demanded an amount of Rs. 1,93,548/ - from M/s. Tamilnadu Asbestos (Pipes), Karur for the goods transport operators service availed by them during the period 16.11.97 to 1.6.98. The original authority had also imposed equal amount of penalty and had demanded interest. Disposing the appeal filed by the respondents, the Commissioner (Appeals) set aside the order of the lower authority relying on a decision of the Tribunal in the case of L.H. Sugar Factories Ltd. v. CCE, Meerut - upheld by the Supreme Court vide 2005 -TIOL -105 -SC -ST. The demand had been made in that case pursuant to the proceeding under Section 73 of Finance Act, 1994. The Tribunal had held that Section 73 applied to persons liable to file return under Section 70. Section 71A covered Goods Transport Operators and C&F Agents. The class of persons covered by Section 71A was not brought under the net of Section 73. Therefore the proceedings were not maintainable.

(2.) THE appeal has been filed by the department on the ground that the Supreme Court had admitted Civil Appeal No. 1618/2005 filed by the Commissioner of Central Excise, Vadodara I in the case of Gujarat Carbon and Industries and the Civil Appeal No. 7144/2005 preferred by the Commissioner of Central Excise, Chennai III in the case of Sundaram Fasteners Ltd. and it was evident that the Hon'ble Supreme Court had considered it necessary to keep the issue open for further deliberation and final decision. In the application for condonation of delay it is stated that the Order -in -Appeal had to be accepted by the department in view of the Supreme Court's judgment in the case of L.H. Sugar Factories Ltd. (supra). But recently the Commissioner had come across the fact that civil appeals had been admitted by the Supreme Court in Civil Appeal No. 1618/2005 filed by the Commissioner of Central Excise, Vadodara I in the case of Gujarat Carbon and Industries and the Civil Appeal No. 7144/2005 preferred by the Commissioner of Central Excise, Chennai III in the case of Sundaram Fasteners Ltd. It was obvious that the apex Court considered it necessary to keep the issue open for further final decision. Therefore, the appeal was filed belatedly.

(3.) ARGUING the application for condonation of delay by the Department, Smt. R. Bhaghya Devi, SDR cited the following decisions of the Supreme Court and cited the observation of the apex Court as follows: