Custom, Excise & Service Tax Tribunal
M/S Copprrod Industries Pvt Ltd vs Commissioner Of Central Excise on 9 June, 2017
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH BANGALORE Appeal(s) Involved: E/21572/2014-SM [Arising out of Order-in-Appeal No. 3/2014 CE dated 31/01/2014 passed by Commissioner of Central Excise (Appeals-I) Bangalore] M/s Copprrod Industries pvt Ltd No. 83/122-2, Hirehalli Industrial Area Hirehalli, Tumkur Appellant(s) Versus Commissioner of Central Excise Bangalore II Commissionerate PB No. 5400, C.R. Building, Queens Road, Bangalore 560001 Respondent(s)
Appearance:
Mr. M.S. Nagaraja, Adv For the Appellant Mr. N. Jagadish, A.R. For the Respondent Date of Hearing: 06/03/2017 Date of Decision: 09/06/2017 CORAM: HON'BLE SHRI S.S GARG, JUDICIAL MEMBER Final Order No. 20858/ 2017 Per : S.S GARG
The present appeal is directed against the impugned order dated 31.01.2014 passed by the Commissioner (Appeals) whereby the Commissioner (Appeals) has rejected the appeal of the appellant on account of time bar.
2. Briefly the facts of the present case are that the appellants are engaged in the manufacture of copper rods falling under Chapter 74 of the CETA 1985 and are availing the benefit of Cenvat credit under Cenvat Credit Rules 2004. During the course of audit of the records by CAAP Audit team of the department, it appeared that the appellant had availed Cenvat credit as well as depreciation in their income tax return in respect of certain capital goods. Based on the direction of the audit team, the appellant reversed the Cenvat credit amounting to Rs 3,17,961/- on 09.08.2010 and also paid interest of Rs 61,153/-vide two challans dated 31.08.2016 and 21.09.2010. Thereafter the appellant had a bonafide belief that the appropriate authority would issue a show-cause notice to determine whether the appellants have wrongly taken the Cenvat credit as stated by the Internal Audit party on the matter but the jurisdictional authorities did not initiate any proceedings. Thereafter the appellant submitted a letter dated 17.05.2012 along with application for refund of Cenvat Credit of Rs 3,17,961/- and interest of Rs 61,153/-paid due to wrong direction of the audit authorities. Thereafter the Assistant Commissioner vide order-in-original dated 18.09.2012 rejected the refund claim as barred by limitation and aggrieved by the said order appellant filed appeal before the Commissioner who vide the impugned order also rejected the appeal of the appellant and hence the present appeal.
2. Heard both the parties and perused the records Learned counsel for the appellant submitted that the impugned order is not sustainable in law as the same has been passed without appreciating the facts and the law and also contrary to the judicial precedents. He further submitted that the reversal of credit and payment of interest was done at the instance of the Audit party and the Audit party had given the direction without proper verification. He further submitted that the original authority after due verification of their balance-sheet for the year 2008-09 had come to the conclusion that the appellant had not claimed depreciation. He further submitted that the demand of Cenvat credit and interest on the wrong direction of the Audit party cannot be treated as payment of duty and that such payments are in the nature of deposit pending adjudication and in this case, there was no adjudication and appropriation of deposit against the confirmed demand. In support of his submission he relied upon the following decisions:
1) CCE Chandigarh Vs M/s Ind Swift Lands Ltd [2017-TIOL-217-HC-P&H-ST]
2) Parle International Ltd Vs UOI [200(127)ELT 329( Guj)]
3) Bhagwati International Vs UOI [2005(190)ELT 300 (P&H)]
4)Bajaj Auto Ltd Vs CCE Aurangabad [2007(213)ELT 577(Tri-Mum]
5) Foods, Facts & Fertilizers Ltd Vs CC, CE & ST, Guntur [2010 (20)STR 482 (Tri-Bang)]
6) Laxmi Board & Paper Mills Ltd Vs CCE Mumbai [2007(208)ELT 384 (Tri-Mum)]
7) Bodal Chemicals ltd Vs CCE Ahmedabad [2013)(201) ELT 399 (Tri-Ahmd)] He further submitted that the issuance of show-cause notice is mandatory requirement in terms of Section 11A for demand of duty and in this case no show-cause notice was issued for demand of duty and thereafter for appropriation of the deposit made by the appellant. In support of this submission he relied upon these two Authorities:
1) Metal forgings Vs UOI [2002 (148)ELT 241(SC)]
2) UOI & Others Vs Madhumilan Syntex Pvt Ltd [1988(35)ELT 349 (SC) On the other hand the learned A.R. for the Revenue submitted that the Commissioner (Appeals) has rightly rejected the refund claim as the same has been filed after a period of limitation as prescribed in Section 11B and in support of his submission he relied upon the following Authorities:
1) Asstt Collector of Customs Vs Anam Electrical Manufacturing Co [1997(90) ELT 260(SC)]
2) MCI Leasing (P) Ltd Vs CCE, C & ST [2012-TIOL-54-HC-KAR-ST]
3) Avanti Feeds Ltd Vs CC Chennai [2007(213)ELT 280(Tri-Bang)]
4) Miles India Ltd Vs Asstt Collector of Customs [1987(30)ELT 641(SC)]
5) Agro pack Vs CCE Surat-II [2009(238) ELT 750 (Tri-Ahmd)
6) CCE Raipur Vs Manorath Builder (P) Ltd [2010(18)STR 453(Tri-Del)]
7) Benzy Tours & Travels Pvt Ltd Vs CST Mumbai [2016(43)STR 625(Tri-Mum)] After considering the submissions of both the parties and perusal of the records, I find that the Cenvat credit was reversed at the instance of the Audit party. Further the interest was also paid on the direction of the Audit party. The Original Authority after verification of the records, has come to the conclusion that the appellant had not claimed depreciation and therefore the appellant was not required to reverse the Cenvat credit and to pay the interest thereon. Though the counsel for the appellant submitted that any deposit made during the investigation is in the nature of deposit and cannot be termed as duty as there was no determination of duty at that point of time but during the course of argument, the learned counsel for the appellant agreed that now he does not press for the refund of the said amount paid at the direction of the Audit party along with interest if the Tribunal permits the appellant to take recredit of the Cenvat Credit reversed by him along with interest paid in cash. In view of this offer by the learned counsel for the appellant, without going into the merits of the case, I am of the view that the appellant is entitled to Cenvat credit which the appellant reversed at the instance of the Audit party wrongly along with interest paid by him. Therefore, I modify the order rejecting the refund claim of the appellant and allow the appellant to take recredit of the Cenvat credit reversed along with interest. Appeal is accordingly disposed of.
(Order was pronounced in Open Court on 09/06/2017) S.S GARG JUDICIAL MEMBER Pnr..
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