Custom, Excise & Service Tax Tribunal
Ambuja Cements Limited vs Cce, Raipur on 29 June, 2010
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL,
WEST BLOCK NO.II, R.K. PURAM, NEW DELHI-110066.
Single Member Bench
Excise Appeal No.1652 of 2008
(Arising out of Order-in-Appeal No.39/RPR-I/2008 dated 07.04.2008 passed by the Commissioner of Central Excise (Appeals-I), Raipur)
Date of Hearing/Decision: 29.06.2010
For approval and signature:
Honble Mr.Rakesh Kumar, Member (Technical)
1 Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
2 Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
3 Whether Their Lordships wish to see the fair copy of the Order?
4 Whether Order is to be circulated to the Departmental authorities?
Ambuja Cements Limited Appellant
Vs.
CCE, Raipur Respondent
Present for the Appellant : Shri B.L.Narsimhan, Advocate
Present for the Respondent: Shri S.N.Singh, JCDR
Coram: Honble Mr. Rakesh Kumar, Member (Technical)
ORDER No.____________/
PER: RAKESH KUMAR
The facts leading to the present appeal are as under:
1.1. On 30.03.2007, Jurisdictional Assistant Commissioner passed an order in the case of the appellants allowing the credit amounting to Rs.2,59,065/- in respect of various items of iron and steel falling under chapter 72. This order of the Assistant Commissioner was reviewed by the department and review appeal was filed before the Commissioner (Appeals), who vide order-in-appeal No.180/RPR-I/2007 dated 30.08.2007 allowed the departmental appeal holding that the appellants in this case were not eligible to credit in respect of M.S. Plates, angles, Joists, M.S. Channel etc. which were used in the plant. However, the Commissioner (Appeals) on the point of penalty on the appellants for taking wrong credit remanded the matter to the original adjudicating authority. The appellants filed an appeal to the Tribunal against the order-in-appeal No.180/RPR-I/2007 dated 30.08.2007 passed by the Commissioner (Appeals) and the Tribunal vide its Final Order No.544/2010-SM (BR) dated 13.05.2010 remanded this matter to he original adjudicating authority for passing fresh order after hearing both sides and taking into account the decision of the Larger Bench in the case of Vandana Global Limited vs. CCE, Raipur reported in 2010 (253) ELT 440. The Tribunal in its order specifically observed that neither the original adjudicating authority nor the Commissioner (Appeals) have discussed the use of the items in question and that their eligibility for cenvat credit should be decided after ascertaining the actual use of the items in light of the Larger Bench decision in the case of Vandana Global Limited (supra). However, in the mean time in pursuance of the Commissioner (Appeals)s order No.180/RPR-I/2007 dated 30.08.2007, the Jurisdictional Assistant Commissioner adjudicated the question of penalty and vide order-in-original No.91/ADJ/AC/DENOVO/2008 dated 28.12.2007 imposed penalty of Rs.1 lakh on the appellants, which on appeal being filed before the Commissioner (Appeals), was reduced to Rs.10,000/- vide order-in-appeal No.39/RPR-I/2008 dated 07.04.2008. It is against this order that the present appeal has been filed by the appellants. Since the issue relating to eligibility to cenvat credit has been remanded by the Tribunal to original adjudicating authority, linked issue of penalty is also required to be remanded to the same original adjudicating authority. Accordingly, the impugned order is set aside and the matter is remanded to the original adjudicating authority for deciding the issue of penalty also.
(RAKESH KUMAR)
MEMBER (TECHNICAL)
mk
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