@JUDGMENTTAG-ORDER
Rajive Bhalla, J.@mdashBy way of this order, we shall decide three appeals, namely, Central Excise Appeal Nos. 33, 34 and 35 of 2013, as they involve adjudication of the same questions of law and fact. For the sake of convenience, facts are being taken from Central Excise Appeal No. 33 of 2013. The appellant challenges order dated 18.03.2013, passed by the Customs Excise and Service Tax Appellate Tribunal (hereinafter referred to ''as the CESTAT''), directing the appellant to deposit 25% of the amount demanded by the revenue as a pre-condition to the entertaining of these appeals.
2. Counsel for the appellant submits that liability to pay central excise has been imposed by rejecting the percentage of burning loss claimed by the appellant. A similar matter has been decided by the Commissioner (Appeals), Customs and Central Excise, in Appeal No. 176/CE/APPL/LDH/13, on 22.03.2013 by holding that burning loss of 4.92% is within the norms of 2 to 6-7% prescribed by the National Institute of Secondary Technology. It is prayed that in view of the above order, the Tribunal may be directed to reconsider the appellant''s prayer for waiver of the condition of pre-deposit.
3. Counsel for the revenue stales that the appellant''s argument can only be considered at the time of deciding the quantum of appeal as various other factors including whether the appellant is covered by norms set out by the National Institute of Secondary Technology, shall have to be considered.
4. We have heard counsel for the parties and perused the impugned order.
5. The appellant filed an appeal impugning the demand of excise duty. The appellant''s claim that burning loss falls within the prescribed norms, was rejected. Aggrieved by this order, the appellant filed an appeal and prayed for waiver of the condition of pre-deposit. The CESTAT, has vide the impugned order directed the appellant to deposit 25% of the duty demanded while staying the balance amount. Normally we would not have interfered with the discretion exercised by the Tribunal but in an appeal arising from a similar dispute, the Commissioner (Appeals), Customs and Central Excise, has vide order dated 22.02.2013, held in the case of M/s. Jai Sidh Yogi Steel Rolling Mills, Bhadla Road, Village Alour, Khanna, that burning loss falls within permissible norms. A relevant extract from the order reads as follows:-
18. In view of the opinion given by the technical institutions like National Institute of Secondary Steel Technology and Joint Plants Committee wastage and burning loss in rolling mills depends upon the various factors as discussed in para 9 above. Burning loss of appellants who manufacture flats which require longer rolling time and excess number of passes through rollers cannot be compared with assessees who manufacture rods which require less number of passes through rollers. Further as evidenced above the rolling mill of the appellant is an old one and not a modernized plant, as it is more than 15 years old and there is no automation of temperature control etc. Due to this the scaling of steel in this type of unit are generally on higher side. This is also supported by the certificate of Chartered Engineer quoted above. As such the norms fixed by National Institute of Secondary Technology and Joint Plant Committee are applicable in their case. The adjudicating authority has also not brought forward any evidence of manufacture and clandestine removal of goods without payment of duty by the appellant. Thus, the burning loss of 4.92% is within the norms of 2 to 6-7 and for such mills fixed by National Institute of Secondary Technology. Their claim is also within the norms fixed by Joint Plant Committee as upheld by the Hon''ble CESTAT.
19. In view of above, the wastage and burning loss claimed by the appellant is in the permissible limit and demand of duty raised in the impugned order is not sustainable. Resultantly imposition of interest and penalty is irrelevant. Hence, I set aside the impugned order passed by the adjudication authority and allow the appeal.
6. The controversy in the present petition is identical to the controversy obtaining in the appeal decided by the Commissioner (Appeals), Customs & Excise. However, as discretion to waive the condition of pre-deposit rests with the CESTAT, it would be appropriate that the matter is reconsidered.
7. Consequently, the appeals are allowed, the impugned orders are set aside and the matter is remitted to the CESTAT to consider the application for pre-deposit, afresh, after taking into consideration the opinion recorded by the Commissioner (Appeals), Customs and Central Excise, in the case of Jai Sidh Yogi Steel Rolling Mills, Bhadla Road, Village Alour, Khanna, in accordance with law. Parties are directed to appeal before the CESTAT, on 16.12.2013.
