NITCO LIMITED Vs. COMMISSIONER OF C. EX

JUDGEMENT

(1.) This appeal under Section 35G of the Central Excise Act impugns the order dated 12th September, 2013 passed by the Customs, Excise and Service Tax Appellate Tribunal. The Tribunal while disposing of the application for stay filed by the appellants in the appeal before the Tribunal directed the appellant to deposit an amount of Rs. 3 crores. It is this direction which is impugned in this appeal, Mr. Sridharan, the learned senior counsel appearing in support of this appeal submits that the appeal raises a substantial question of law inasmuch as the Tribunal has completely omitted from consideration the argument of the appellant based on the registration of the head office. It is submitted by Shri Sridharan that head office of the appellant's unit was not registered as an Input Service Distributor (JSD) for distribution of Cenvat credit during the relevant time. However, the registration has been obtained subsequently. At best, this is a procedural lapse and remediable. Reliance was placed upon several decisions of the Tribunal and particularly in the case of Doshion Ltd. v. Commissioner of Central Excise, 2013 288 ELT 291.

(2.) Mr. Sridharan submits that instead of referring to these orders and in the case of Doshion Ltd., which are rendered by a two Member Bench, the Tribunal choose to rely on the order passed by a single member. This is contrary to law and this itself would give rise to a substantial question of law. Mr. Sridharan submits that the matter should be sent back to the Tribunal for reconsideration on this limited point.

(3.) More so, when the Tribunal has found a strong prima facie case in favour of the appellant to the extent of a demand of Rs. 2.88 crores. Further, out of the total demand of Rs. 6 crores, the appellant has reversed the credit to the extent of Rs. 3 crores. Now directing the appellant to deposit a sum of Rs. 3 crores would mean a deposit of the entire amount and thus, the order stands vitiated in law.