Custom, Excise & Service Tax Tribunal
M/ Birla Corporation Ltd vs Cce, Jaipur on 18 May, 2016
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL West Block No. 2, R.K. Puram, New Delhi 110 066. Principal Bench, New Delhi COURT NO. III DATE OF HEARING : 25/02/2016. DATE OF DECISION : 18/05/2016. Excise Appeal No. 1950 of 2006 [Arising out of the Order-in-Appeal No. 125 (HKS)/CE/JPR-II/ 2006 dated 08/02/2006 passed by Commissioner II, Customs & Central Excise, Jaipur.] For Approval and signature : Honble Shri S.K. Mohanty, Member (Judicial) Honble Shri B. Ravichandran, 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 would 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 : Department Authorities? M/ Birla Corporation Ltd. Appellant Versus CCE, Jaipur Respondent
Appearance Ms. Rinky Arora, Advocate for the appellant.
Shri R.K. Grover, Authorized Representative (DR) for the Respondent.
CORAM: Honble Shri S.K. Mohanty, Member (Judicial) Honble Shri B. Ravichandran, Member (Technical) Final Order No. 51806/2016 Dated : 18/05/2016 Per. B. Ravichandran :-
This appeal is against order dated 08/2/206 of Commissioner (Appeals II), Jaipur. The brief facts of the case are that the appellants are engaged in the manufacture of Cement liable to Central Excise duty. They were availing credit of duty paid on inputs and capital goods in terms of Cenvat Credit Rules, 2001. The Department entertained a view that inputs like lubricants and explosives used in mines are not eligible for Cenvat credit as the same are not used within the factory premises. Proceedings were initiated against the appellant alongwith similarly placed assessees, to recover the Cenvat credit already taken alongwith the interest. The Original Authority adjudicated the case and vide his order dated 24/2/2003 disallowed the credits and imposed certain penalty on the appellant. However, he ordered that there is no interest liability on the appellant. Aggrieved by this order the appellant as well as the Department preferred appeals before the Commissioner (Appeals). The appellant challenged the disallowance of credit while the Department challenged the non-confirmation of interest on disallowed credit by the Original Authority. The Departments appeal was decided by the impugned order by the learned Commissioner (Appeals). He held that the interest is recoverable on the ineligible credit taken or utilized wrongly. Aggrieved by this order, the present appeal has been filed by the appellant/ assessee.
2. During the hearing, the learned Counsel for the appellant submitted that their appeal against the original order was decided by the learned Commissioner (Appeals) vide his order dated 22/09/2004. The Commissioner (Appeals) relying on the Honble Supreme Court decision in J.K. Udaipur Udyog Ltd. 2004 TIOL 73 SC CX. upheld the original order for denial of credit. Against the said order, the appellant/ assessee filed appeal before the Tribunal. The appeal was decided vide final order No. 854-857/2008 dated 04/11/2008. The Tribunal relying on the decision of the Honble Supreme Court in Vikram Cement vs. CCE, Indore reported in 2006 (194) E.L.T. 3 (S.C.) allowed the appeal and held in favour of the assessee.
3. We have heard both the sides and considered the appeal records.
4. In view of the above position, we find that the denial of credit by the Original Authority and the Appellate Authority itself has been found to be unsustainable by the Tribunal in the above said order. Hence, the question of interest on such ineligible credit does not arise. Considering the above position, we allow the appeal.
(Order pronounced in the open court on 18/05/2016.) (S.K. Mohanty) Member (Judicial) (B. Ravichandran) Member (Technical) PK ??
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