Custom, Excise & Service Tax Tribunal
M/S. Himalaya Drug Company vs C.C.E. & S.T., Meerut-I on 20 June, 2014
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL WEST BLOCK NO.II, R.K. PURAM, NEW DELHI-110066. COURT - II Appeal No.E/55757/2013-EX[SM] [Arising out of Order-in-Appeal No.317/CE/MRT-I/2012, dated 18.10.2012 passed by C.C.E.(Appeals), Meerut-I] M/s. Himalaya Drug Company : Appellants Vs. C.C.E. & S.T., Meerut-I : Respondents
Present for the Appellants :
Shri Dayanand, C.A. Present for the Respondents :
Shri BB Sharma, DR Coram: Honble Mr.D.N.Panda, Judicial Member Date of Hearing : 20.06.2014 FINAL ORDER NO.52529/2014, DATED: 20.06.2014 PER: D.N.PANDA Ld. consultant says that the Show Cause Notice was issued alleging violation of Rule 11(3) of CENVAT Credit Rules, 2004. But adjudication proceeded under Rule 11(2) thereof. Ld. commissioner (Appeals) decided the appeal holding the case governed by Rule 11(2)/11(3) of the CENVAT Credit Rules, 2004. At all times allegation was vague and all authorities proceeded arbitratingly. None of the authorities proceeded in accordance with law to decide the issue. The adjudication order was beyond Show Cause Notice. Although this ground was in the appeal before ld. commissioner (Appeals), that authority did not deal this point. For which that is also an issue before Tribunal.
2. At this juncture, ld. Departmental Representative says that the Show Cause Notice is altered by over-writing the sub rule in para 13 of the Show Cause Notice. He says because of this the doubt arises. Such Show Cause Notice is also not authenticated by notice issuing authority. The appellant has no right to argue that the matter falls under Rule 11(3) of CENVAT Credit Rules, 2004 since the allegation was under Rule 11(2) of CENVAT Credit Rules, 2004.
3. It may be stated that the sub rule under which allegation was made is to be first ascertained and appellant shall be allowed to lead defence thereon since Show Cause Notice is foundation on which the Department has to build up its case following the ratio laid down by Apex Court in the case of CCE, Bangalore Vs. Brindavan Beverages (P) Ltd. [2007 (213) ELT 487 (SC)].
4. In view of the controversy between the parties, in all fairness, the matter is remanded to ld. commissioner (Appeals) to hear the appellant on the fundamental issue as to whether the proceeding was initiated by Show Cause Notice alleging violation of Rule 11(2) or Rule 11(3) of CENVAT Credit Rules, 2004 and pass appropriate order on merit accordingly affording reasonable opportunity of hearing the appellant.
5. It is expected that the appellant shall be issued notice of hearing within a month of receipt of this order and appropriate order passed by granting reasonable opportunity of hearing to the appellant within a period of three months of last date of hearing.
(Dictated and pronounced in the Open Court) (D.N.PANDA) JUDICIAL MEMBER SSK
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Appeal No.E/55757/2013