Custom, Excise & Service Tax Tribunal
M/S. Shiva Polyplast Pvt. Ltd vs Cce, Kanpur on 4 February, 2014
IN THE CUSTOMS, EXCISE AND SERVICE TAX
APPELLATE TRIBUNAL, NEW DELHI
COURT NO. III
Excise Appeal No. 3271/2010-EX[SM]
[Arising out of Order-In-Appeal No.417-18-CE/APPL/KNP Dated 31.08.2010 passed by CCE, Kanpur]
For approval and signature:
Honble Ms. Archana Wadhwa, Judicial Member
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Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
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Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
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Whether Their Lordships wish to see the fair copy of the Order?
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Whether Order is to be circulated to the Departmental authorities?
M/s. Shiva Polyplast pvt. Ltd. Appellant
Vs.
CCE, Kanpur Respondents
Appearance:
Shri R.K. Mishra, AR for the Appellant None for the Respondent Coram: Honble Ms. Archana Wadhwa, Judicial Member Date of Hearing: 04.02.2014 FINAL ORDER NO. 50405/2014_ Per Ms. Archana Wadhwa:
Being aggrieved with the order passed by Commissioner (Appeals), revenue has filed the present appeal. I have heard Shri R.K.Mishra, learned AR appearing for the revenue. Nobody appeared for the respondent.
2. On going through the impugned order of Commissioner (Appeals), I find that the dispute in the present appeal relates to availment of Cenvat credit of duty paid on the final product, which was cleared by the appellant of payment of duty but stands rejected by the customers and received back in the factory. The objection of the revenue was that no intimation about receipt of such rejected goods was given inform D-3 and no separate records were maintained in terms of the provisions of Rule 16 of Central Excise Rules 2002.
3. On appeal, Commissioner (Appeals) held in favour of the assessee by observing as under:-
It is alleged by the Deptt. that the appellant has not followed the provisions of Rule 16 (1), (2) & (3) of Central Excise Rules as they failed to produce the original duty paying documents establishing payment of duty as per provisions under Rule 7(9) of the Cenvat credit Rules in case appellant fails to produce original documents, he is required to produced other co-lateral documentary evidence to the satisfaction of jurisdictional Asstt. Commissioner/Dy. Commissioner for establishing of payment of duty. Appellant failed to maintain statutory records showing full particulars of duty paid goods including processes under taken also failed to give D-3 intimation to the jurisdictional Superintendent with copy to Asstt. Commissioner for Receipt of goods. The appellant contention that they have properly maintained the records in the form or RG23 (Pt.l &ll) and Rejected goods receipt registers and the dealers/distributors challans, transport documents and letter heads which is clear proof that the goods returned are properly accounted for and they have also maintained co-relation of invoices with return goods, thus the substantial condition of Rule 16 of the Central Excise Rules, 2002 has been complied by them. I find that the appellant has followed the procedure laid down under Rule 16 of the Central Excise Rules read with CBEC manual of Supplementary instructions Pt. iv, except some procedures given in the Trade Notice No. 38/2 issued from the Kanpur Commissionerate like D-3 intimation etc. It is a settled law that substantive benefits of the law cannot be denied on procedural grounds. Therefore, the demand does not stand on merits and when the demand does not stand the penalty also do not stands.
4. On going through the said order of Commissioner (Appeals), I find that admittedly returned goods were entered in the form of RG-23 as also rejected goods receipt register and stand properly accounted for. Revenue has not rebutted the finding of fact by Commissioner (Appeals), in which case it has to be held that non filing of D-3 intimation cannot be adopted for denial of substantive benefits, otherwise available. As such, I find no infirmity in the impugned order of Commissioner (Appeals) & the appeal is accordingly rejected.
(Pronounce in the open Court) (Archana Wadhwa) Member (Judicial) Jyoti* ??
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