M/S.KJR Poly Films Pvt. Ltd v. 1. The Commissioner of Central Taxes

Counsel for the Appellant: Sri Karan Talwar Counsel for the Respondent: Ms. Bokaro Sapna Reddy (Senior Standing Counsel for CBtC) The Court delivered the following JUDGMENT: i I ! t I I -id Y THE HONOTJRABLE SRI JUSTTCE P.SAM KOSHY AND THE HONOT]RABLE SRI JUSTICE NARSING RAO NANDIKONDA C.E.A.No.18 OF 2024 JUDGMENT (Per Hon'ble Sri Jttstice P Sam Koshy) Heard Mr. Karan Talwar, leamed counsel for the appellant and Ms. Bokaro Sapna Reddy, leamed Senior Standing Counsel for the Central Board of Indirect Taxes and Customs' Perused the record.

2. The challenge in the present central excise appeal is to the order passed by the Customs, Excise and Service Tax Appellate Tribunal, Southem Regional Bench, Hyderabad (CESTAT) dated l8.O2.2}lg and the subsequent rectification order passed on

30.t0.2023.

3. From the perusal of the impugned order, it appears what was questioned was the flnal order passed by the CESTAT dated l8.O2.2}lg. The said order was passed ex parte as the notices issued by the Tribunal went unattended by the appe[lant and the Tribunal finally passed the order dated 18'02'2019 and the same was also sent at address of the appellant' Thereafter' a l 2 rectification petition was filed by the appellant along with an application for recalling of the ex parte order d*ed 18.02.2019. Both these applications were together taken up and a i:ommon order rvas passed on 10.10.2023 dismissing the same, leading to the filing of the instant appeal under Section 35(G) of the Central Excise Act, 1944.

4. There were two major grounds raised by ttre appellant, one that the impugned order passed by the Tribunal on t8.02.2019 was without proper service of notice upon the appellant and the second ground was that the judgment of the Hon'ble Supr,eme Court in the case of Commissioner of Central Excise, Iaipur ,(I vs, M/s Super Synoter (IndiQ Ltdt would be applicable only for the period from 0l -07.2000 onwards and would not be applicable for the period prior to 31.06.2000. In the instant case, the rel,3vant period for which the impugned orders have been passed are spreading from 1996-97 to 2003-04. The fact that the judgmerLt of M/s Super Synotex Qndia) Ltd (supra) relied upon by the Tribunal while deciding the appeal at the first instance being applicable for a ,[2014(301) ELr 273 (SC)]( w-7 3 period only prior to 01.07.2000 has not been disputed by the leamed Standing Counsel for the department. However, as regards the applicability of the said judgment for the period prior to 3 I .06.2000 has not been discussed, deliberated or referred to in the impugned order of the Tribunal, neither at the first instance nor at the subsequent stage of the rectification petition or the recall petition filed by the appellant.

5. As regards the ground of notices having not been served upon the appellant, the respondent has filed memo dated

20.01.2025 showing the notices to have been issued by speed post to the appellant and also the impugned orders having been issued at the known address. Further, it also reflects that the subsequent rectification petition and the recall petition have also been fited by the appellant from the same address and the notices and the subsequent orders also have been issued at the same address, all of which have been duly served and received by the appellant We see no reason why it should be presumed that the notice issued at the first instance was not served upon the appellant. The appellant also has not made any effort in producing I 4 documentary proof or the necessary information from the post office concemed so far as the notices so issued frave nol been delivered to the addressee.

6. In the absence of anything as such made available by the appellant, the first ground raised by the appellant of having not been served rvith notice is not sustainable and the same stands answered in the negative.

7. Howevcr, as regards the second ground of the issue involved in the case, which according to the Tribunal, is squarely covered by the judgment of the Hon'ble Supreme Court in the case of M/s Super S)'notex (India) Ltd (*pra), since there seems t"o be a consensus so t-ar as the said principles laid dorvn in the said judgment being applicable only from 01'07'2000, we find some strength in the argument of the leamed counsel for the appellant when it comes to the applicability of the said judgment for the period prior to 01.07.2000.

8. Adrnittedty, in the instant case, the peri'cd involved is 1996-97 to 2003-04 and if the aforesaid judgment of the }{on'ble 5 Supreme Court in the case of lll/s Super Synotex (ndia) Ltd (supra) is made applicable from 0l'07'2000, there has to be decision of the Tribunal so far as the earlier period is concemed i.e., for the period 1996-97 till 31'06'2000 in respect of the appellant is concemed. The Tribunal having not discussed' deliberated or referred to the said aspect, we are of the considered opinion that it is a fit case where the matter can be remitted back to the Tribunal to the limited extent to ascertain whether the judgment of the Hon'ble Supreme Court in the case of M/s Super Synolex (India) Lld (tryta) would also be applicable for the period prior to

31.06.2000 also or not. l ) g. The instant appeal, to the aforesaid extent, stands partly allowed. The impugned order stands set aside to the extent of the period from 1996-97 till 31.06.2000' leaving it open for the Tribunal to decide the applicability of the said judgment for the aforesaid period. Considering the fact that the issue being more than a decade old, in order to expedite the proceedings and to I I ensurethattherewillbenofurtherprotractingofthematter' we direct the appellant as well the as respondent to enter 6 appearance before the Tribunal on 17 .02.2025. It is made cl':ar that there shall be no further necessity of issuance of any fuither notice of appearance for the appellant before the T'ribunal and the Tribunal, in turn, is expected to take a decision on the limited aspect of the applicability of the judgment in the ca::e of M/s Super Synotex Qndia) Ltd (stpra) for the period prior to 31.06.2000 so far as the appellant is concemed.

10. With the afbresaid order and direction, ther central excise appeal stands partly allowed. There shall be no order as to costs. Consequently, miscellaneous petitions pendirrg, if an1', shall stand closed. //TRUE COPY// Sd/. M. VIJAYA BHASKER JOINT REGISTRAR ,\[ [5dcr ION OFFICER To,,l.TheCustomS,ExciseandServiceTaxAppellatr:Tribunal(CESTAT)' Hvderabad. Hvderabad. z iiJ"cirmissioner of customs, central Excise and Service Tax (Appeals-ll), s. TilJ"'5!irty Commissioner of Customs, Central Excise' Hyderabad-N a one Cc to'Sri Karan Talwar, Advocate [OPUC] ^ - d. o; aa to Nils Bokaro-6ifiria neaov, (Senior Sc for CBlc) [oPUC] 6. Two CD CoPies Division. Hvderabad- VIVDL @i HIGH COURT DATED: 2710112025 JUDGMENT CEA.No.18 of 2024 S TA ?.i: ;\. 11 tr-t ?us PARTLY ALLOWING GEA \\ ,{ W