Customs, Excise and Gold Tribunal - Delhi
Cimmco Birla Ltd. vs Cce on 8 January, 2004
Equivalent citations: 2004(92)ECC582
ORDER
V.K. Agrawal
1. The issue involved in this appeal filed by M/s. Cimmco Birla Ltd. relates to disallowance of Modvat Credit of the duty paid on inputs.
2. Shri K.K. Anand, learned Advocate, submitted that the appellants manufacture railway wagons and parts thereof; that a show cause notice dated 3.7.98 was issued to them for disallowing the Modvat Credit taken by them during the period for Dec., 97 to April, 98 on the ground that the Modvat Credit had been taken after the physical consumption of inputs and removal of the final product; that in their reply they mentioned that since the railway wagons were manufactured on behalf of the Indian Railways, they were under the genuine bona fide belief that the wagons were exempt from duty in terms of Notification No. 64/95 dated 16.3.95 which completely exempted all wagons supplied to Indian Railways from duty; that they were, subsequently, informed by the Ministry of Railway in 1997 that wagons supplied against 'Own Your Wagons Scheme' were liable to excise duty. Thereafter, they discharged the duty on the impugned wagons; that in the facts and circumstances of the case they had committed certain technical errors in making appropriate date entries in the Modvat register for the purpose of documenting the physical receipts; that the Assistant Commissioner, however, in the Order-in-Original No. 66/01 dated 29.8.01 disallowed the Modvat Credit; that the Commissioner (Appeals) in Order-in-Appeal No. 47/03 dated 10.2.03 had rejected their appeal on the ground that they had failed to advance any documents before the Adjudicating Authority to establish that the inputs were used with reference to wagons cleared earlier under payment of duty. The learned Advocate, further, submitted that as the duty on the final product was discharged only after clarification received from Indian Railways, the inputs could not be physically available at the time of availment of Modvat Credit; that substantive benefit of Modvat Credit cannot be disallowed on technical/venial breach of procedure as held in the case of Decorative Laminates (I) P. Ltd. v. CCE, 1995 (61) ECR 652; that as their factory is closed, the necessary documents could not be furnished to the Assistant Commissioner for verification and all these documents are available with them and an opportunity should be given to them to produce those documents for verification,
3. Countering the arguments, Sh. Kumar Santosh, Ld. SDR, submitted that the Modvat Credit has been disallowed on the ground that they had failed to prove that the inputs were used in the manufacture of wagons which were cleared under the "Own Your Wagon Scheme"; that after the issuance of the show cause notice dated 3.7.98, the matter was initially adjudicated by the Assistant Commissioner under Order-in-Original No. 126/98 dated 31.3.99, which was remanded by the Commissioner (Appeals) under Order-in-Appeal No. 713/00 dated 17.7.2000 with the direction to the appellants to establish with the documents that inputs were used with reference to wagons cleared earlier without payment of duty; that in spite of this, clear remand order passed by the Commissioner (Appeals) in 2002, when the matter came up for de novo adjudication before the Asstt. Commissioner, they did not submit any evidence to show the correlation of the inputs with reference to wagons cleared earlier; that the Assistant Commissioner has, disallowed the Modvat Credit and confirmed the demand; that even when the matter was fixed for personal hearing by the Commissioner (Appeals) on 19.4.02, 17.6.02, 30.10.02 and 24.1.03, no one appeared on behalf of the appellants; that they have also not submitted any documentary evidence before the Commissioner (Appeals); that the appellants cannot, therefore, make use of this appeal before the Tribunal for getting the matter again remanded as sufficient opportunities had been afforded to them.
4. We have considered the submissions of both the sides. It has not been rebutted by the learned Advocate for the appellants that the Commissioner (Appeals) under Order-in-Appeal No. 713/KDT/CE/JPR/2000 dated 17.7.2000 had remanded the matter to the Assistant Commissioner with specific direction to the appellants to establish with the documents that the inputs were used with reference to the wagons cleared earlier without payment of duty under 'Own Your Wagon Scheme'. It is also not disputed by the appellants that the direction in the remand order was neither carried out before the Assistant Commissioner nor even before the Commissioner (Appeals). When the matter has been remanded by the Commissioner (Appeals) with specific direction under Order-in-Appeal which has not been challenged by the appellants, it cannot now be claimed by them that these are only procedural or technical requirements for which substantive benefit of Modvat Credit should not be denied. Sufficient opportunities had been extended to establish the nexus between the inputs and the railway wagons which had not been availed of by them. As the remand direction was not complied with by the appellants, we do not find any infirmity in the impugned order passed by the Commissioner (Appeals). We, therefore, find no merit in the appeal which is rejected.