Custom, Excise & Service Tax Tribunal
M/S Khaitan Electricals Ltd vs Commissioner Of Central Excise, Kol.Vi on 10 January, 2014
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL,
EAST REGIONAL BENCH : KOLKATA
SP-70863/13
& Ex. Appeal No.70837/13
Arising out of O/A No.31/Kol.VI/2013 dated 16.04.2013 passed by Commissioner of Central Excise (Appeals), Kolkata.
For approval and signature:
DR. D. M. MISRA, HONBLE JUDICIAL 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 His Lordship wishes to see the fair copy
of the Order? :
4. Whether Order is to be circulated to the Departmental
Authorities? :
M/s Khaitan Electricals Ltd.
APPELLANT(S)
VERSUS
Commissioner of Central Excise, Kol.VI
RESPONDENT (S)
APPEARANCE Shri N. K. Chowdhury, Advocate for the Appellant (s) Shri S. Misra, Addl. Commissioner (A.R.) for the Department CORAM:
DR. D. M. MISRA, HONBLE JUDICIAL MEMBER DATE OF HEARING & PRONOUNCEMENT : 10. 01. 2014 ORDER NO.FO/A/75016/2014 Per Dr. D. M. Misra :
This is an application for waiver of cenvat credit of Rs.21.23 lakhs and equal amount of penalty imposed under 57 I of the erstwhile Central Excise Act, 1944 read with Section 11AC of the Central Excise Act, 1944.
2. At the outset, the ld.Advocate appearing for the Applicant, has submitted that during the period from April, 1994 to March, 1995, the Applicant had availed cenvat credit on the basis of invoices, gate passes etc.. It is his submission that even though the show-cause notice was issue to them on 2nd March, 1998, the adjudication process has commenced after 13 years and relevant documents were lost during the passage of time. The ld. Advocate further submits that the ld. Commissioner (Appeals) has not decided the issue on merit but directed to deposit Rs.20.00 lakhs against the confirmed dues. The ld. Advocate also pleads that if a fair chance be given to them, they can establish their case through records/documents that the inputs were duly received and utilized in their production of finished goods. He submits that the Appellant Company has accumulated a loss for more than Rs.4.00 Crores. However, he has made an offer to deposit 10% of the cenvat credit and prayed that the appeal be remanded to the original adjudicating authority for deciding the issue afresh.
3. The ld. A.R. for the Department, has reiterated the findings of the ld.Commissioner (Appeals). He has submitted that since the ld. Commissioner (Appeals) has not decided the issue on merit, but dismissed their appeal for non-compliance with the provisions of Section 35F of the Central Excise Act, 1944, hence, he has no objection for remanding the case for fresh decision. However, he pleads that the Appellant be put to terms.
4. After hearing both sides, I find that the appeal itself could be disposed of at this stage. Consequently, with the consent of both sides, the appeal is taken up for final disposal.
5. I find that the ld. Commissioner (Appeals) has not decided the issue on merit, but dismissed their appeal for default in making predeposit as directed by him. I find that modvat credit had been availed by the Appellant during 1994 and 1995, on various documents were denied by the adjudicating authority, observing that the relevant documents were not proper documents for availing the modvat credit during the said period. The ld. Advocate during the course of argument, submits that the principle of law on the subject, is well settled that once the inputs were received and utilized in the Appellants factory for the manufacture of finished goods, the modvat credit cannot be denied on the ground that the documents were improper. I find force in the submissions of the ld. Advocate for the Appellant. Since the Appellant could not produce the relevant documents, they may be given a chance to place before the lower authority. Both sides agree that the matter be remanded to the adjudicating authority. I agree with the ld.A.R. for the Revenue that the Appellant should be put to terms before remaning the case. Accordingly, I direct the Appellant to deposit 10% of the modvat credit of Rs.21.23 lakhs within a period of eight weeks from today and report compliance directly to the adjudicating authority. The adjudicating authority would decide the issue on merit, after recording compliance. Consequently, I set aside the impugned order and remit the matter to the adjudicating authority for re-consideration of the case afresh on merit. Needless to mention, a reasonable opportunity of hearing be granted to the Appellant to present their case. All issues are kept open and both sides are at liberty to produce evidences in their support.
6. The appeal is allowed by way of remand. Stay petition is disposed off.
Dictated and pronounced in the open Court.
Sd/ (DR. D.M.MISRA) MEMBER (JUDICIAL) mm 2 Ex. Appeal No.70837/13