Sulzer Friction Systems (I) Ltd. vs Commissioner of C. Ex., Chennai-I

T. Raja, J.—Heard the learned counsel for the petitioner and Mr. A.P. Srinivas, learned Standing Counsel, who took notice for the respondent and with their consent, the main writ petition itself is taken up for hearing. This writ petition has been filed by M/s. Sulzer Friction Systems (India) Ltd., represented by its Director V. Bhaskararamam, challenging the impugned Order-in-Original No. 24/2015 (C. No. V/15/87/45/2014-Adjn.), dated 17-6-2015 passed by the Commissioner of Central Excise, Chennai-I Commissionerate, as arbitrary, illegal and unsustainable in law.

Mr. K. Jayachandran, learned counsel appearing for the petitioner submitted that peculiar circumstances have compelled the petitioner to come to this Court as against the Order-in-Original. According to him, the issue raised by the petitioner has already been decided by the Allahabad1 Tribunal in the case of Rolastar Pvt. Ltd., v. CCE, Daman reported in , 2012 (276) E.L.T. 87 , wherein, it is held that the provisions of Rule 10(a) would not apply to job worker who has completed job work and returned to the principal manufacturer. Based on the said ratio laid down by the Allahabad1 Tribunal, the Customs, Excise & Service Tax Appellate Tribunal, South Zonal Bench, Chennai Tribunal also in the very same petitioner''s case for the previous period viz., 1-4-2008 to 30-9-2013 by order dated 24-6-2015, has held the petitioner, appellant therein had made out a case for waiver of total demand and accordingly there will be waiver of pre-deposit and the application for stay of recovery during pendency of appeal was allowed. When that being the case, the respondent ought not to have taken a different view and passed the impugned order, pleaded.

It appears that the ratio laid down by the Allahabad1 Tribunal has not been brought to the notice of the respondent. However, the decision rendered by the Customs, Excise & Service Tax Appellate Tribunal, South Zonal Bench, Chennai could not be brought to the notice of the respondent as it was subsequent to the impugned order passed by the respondent. Therefore, I am of the view that the matter has to be appealed before the appellate authority.

In similar circumstances, in W.P. No. 12546 of 2015, dated 12-6-2015, in the case of Fifth Avenue Sourcing (P) Ltd. Vs. Commissioner of Service Tax--> , I have directed the petitioner therein to file an appeal before the CESTAT along with stay application, without making pre-deposit of 7.5% of the tax amount confirmed against the petitioner, within a period of two weeks from the date of receipt of a copy of that order. But, as far as the present case is concerned, since the petitioner has got enough time to file an appeal before the appellate authority, the petitioner is directed to file an appeal before the appellate authority along with stay application and on such appeal being filed by the petitioner along with stay application, the appellate authority is hereby directed to entertain the same without insisting of pre-deposit of 7.5% of the tax amount confirmed against the petitioner. With the above direction, the writ petition is disposed of. No costs. Connected miscellaneous petition is closed.

1 Reference seems to Ahmedabad Bench of CESTAT : Editor.