Custom, Excise & Service Tax Tribunal
M/S. Tata Sponge Iron Limited vs Commissioner Of Central Excise, ... on 16 September, 2013
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
EAST ZONAL BENCH: KOLKATA
STAY PETITION NO.E/S/1185/2011
AND
EXCISE APPEAL NO.E/A/934/2011
(ARISING OUT OF ORDER-IN-ORIGINAL CCE/BBSR-II/NO.24/COMMISSIONER/2011 DATED 12.08.2011 PASSED BY COMMISSIONER OF CENTRAL EXCISE, CUSTOMS AND SERVICE TAX, BHUBANESWAR-II)
FOR APPROVAL AND SIGNATURES OF
DR. D.M.MISRA, HONBLE JUDICIAL MEMBER
DR. I.P.LAL, HONBLE TECHNICAL MEMBER
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 ?
M/S. TATA SPONGE IRON LIMITED
APPLICANT(S)/APPELLANT (S)
VERSUS
COMMISSIONER OF CENTRAL EXCISE, CUSTOMS & SERVICE TAX, BHUBANESWAR-II
...RESPONDENT (S)
APPEARANCE:
DR. S.CHAKRABORTY, ADVOCATE FOR THE APPLICANT(S)/APPELLANT(S);
SHRI S.MISRA, A.R.(ADDL. COMMR.) FOR THE REVENUE. CORAM:
DR. D.M.MISRA, HONBLE JUDICIAL MEMBER DR. I.P.LAL, HONBLE TECHNICAL MEMBER Date of Hearing & Decision:16.09.2013 ORDER NO.FO/A-71054/2013 Per Dr. D. M. Misra This is an Application filed seeking waiver of predeposit of CENVAT Credit of Rs.6.84 crore and equivalent amount of penalty imposed under Rule 15 of the CENVAT Credit Rules, 2004 read with Section 11AC of the Central Excise Act, 1944.
2. At the outset, ld. Advocate for the Applicant has submitted that the Applicant during the period from October, 2006-07 to 2008-09 had availed the CENVAT Credit of Central Excise duty paid on various capital goods installed in their factory premises. Even though the capital goods were installed during the period from 2006-07 to 2007-08, but no CENVAT Credit had been availed by them during the said period, as depreciation under Section 32 of the Income Tax Act, 1961 had been claimed by them on the same. The ld. Advocate further submitted that while filing their return for the financial year, 2008-09, their claims for depreciation on the plant and machinery for the earlier years, were revised and the depreciation on the said capital goods was deleted. Subsequently, the CENVAT Credit on the excise duty paid on those capital goods was availed in the year, 2008-09. Thus, they had not availed the benefit of depreciation as well as CENVAT Credit on the same capital goods. In support, he has referred to the Certificate issued by the Assistant Commissioner of Income Tax, Circle-2(2), Bhubaneswar dated 08.08.2013 issued from F.No.ACIT/C-2(2)/Cft/2013-14. The ld. Advocate, however, fairly accepted that the said Certificate was not produced before the ld. Adjudicating Authority, but only relevant Income Tax Returns and the audited balance sheets for the respective Financial Years were placed before the ld. Adjudicating Authority.
3. Ld. AR for the Revenue has submitted that the said Certificate was not placed before the ld. Commissioner, which needs scrutiny. He has no objection in remanding the matter to the ld. Adjudicating Authority for deciding the issue afresh.
4. After hearing both sides for some time, we find that the Appeal itself could be disposed of, at this stage. Accordingly, after waiving the requirement of predeposit of all dues adjudged, we take up the Appeal for disposal with the consent of both sides.
5. We find that the limited issue involved in the present Appeal is that whether the Appellant had availed the benefit of CENVAT Credit on the duty paid on capital goods, as well as depreciation under Section 32 of the Income Tax Act, 1961 on the same capital goods. The Appellant claimed that even though they had claimed depreciation in the financial years, 2006-07 and 2007-08, but subsequently in their return, they had revised the amount of depreciation resulting into deletion of claim of depreciation. Subsequently, after deletion of the said amount of depreciation, they had availed the CENVAT Credit. Further, we find from records that the Appellant have recently procured a Certificate from the Income Tax Authority, wherein it certified that the Appellant had not availed depreciation on the capital goods amounting to Rs.6,84,39,593/-. Also, from the submission of the ld. Advocate for the Appellant, we find that the Certificate now produced before us had not been produced earlier before the ld. Adjudicating Authority for scrutiny and consideration. In these circumstances, we are of the view that it is a fit case to be remitted to the ld. Adjudicating Authority to consider all issues afresh. In the result, the impugned Order is set aside and the case is remanded to the ld. Adjudicating Authority to decide the case afresh. Needless to mention that a reasonable opportunity of hearing may be given to the Appellant. All issues are kept open. Accordingly, the Appeal is allowed by way of remand. Stay Petition is disposed of.
(Dictated and pronounced in the open court.)
Sd/- Sd/-
(I.P.LAL) (D.M.MISRA)
TECHNICAL MEMBER JUDICIAL MEMBER
DUTTA/
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