Custom, Excise & Service Tax Tribunal
Commissioner Of Customs & Central ... vs Ballarpur Industries Ltd on 9 January, 2012
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT NO. I Appeal No. E/454/04 (Arising out of Order-in-Appeal No. RK/212/Nagpur-C/2003 dated 30.10.2003 passed by Commissioner of Central Excise (Appeals), Nagpur.) For approval and signature: Honble Mr. S.S. Kang, Vice President Honble Mr. Sahab Singh, Member (Technical) ======================================================
1. Whether Press Reporters may be allowed to see : No 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 : Yes CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
3. Whether Their Lordships wish to see the fair copy : Seen of the Order?
4. Whether Order is to be circulated to the Departmental : Yes authorities?
====================================================== Commissioner of Customs & Central Excise, Nagpur Appellant (Represented by: Mr. V.K. Agarwal, Additional Commissioner (A.R)) Vs Ballarpur Industries Ltd Respondent (Represented by: Mr. G.L. Deshpande, Advocate) CORAM:
Honble Mr.S.S. Kang, Vice President Honble Mr. Sahab Singh, Member (Technical) Date of Hearing : 09.01.2012 Date of Decision: 09.01.2012 ORDER NO..
Per: S.S. Kang
1. Heard both sides.
2. Revenue filed this appeal against the impugned order passed by the Commissioner (Appeals) whereby the Commissioner (Appeals) set aside the demand for the period from 1.3.2002 onwards on the ground that there was no recovery procedure prescribed either under the Central Excise Act or under the Cenvat Credit Rules, 2002.
3. The respondents are engaged in the manufacture of various types of paper falling under Chapter No. 48 of the Central Excise Tariff and cleared on payment of duty as well as exempted goods and availing credit in respect of the common inputs. Respondents were not maintaining separate records in respect of the inputs used in the manufacture of exempted goods and dutiable goods. Therefore, as per the provisions, the respondents were liable to pay 8% of the price of the exempted goods. Show Cause Notice was issued and the adjudicating authority confirmed demand of Rs 1,13,53,995/- alongwith interest and imposed a penalty by taking into consideration 8% of the price of the exempted goods. Respondents filed appeal and the Commissioner (Appeals) set aside the demand prior to 1.3.2002 on the ground that during that period there was no provision to recover 8% of the price under Rule 6 (3) of the Cenvat Credit Rules, 2002.
4. We find that the provision of Rule 6 of the Cenvat Credit Rules, 2002 is retrospectively amended by Section 69 of the Finance Act, 2010 and a recovery procedure has been prescribed. In these circumstances, the matter requires reconsideration by the Commissioner (Appeals) regarding liability of the respondents in respect of the exempted goods as the respondents are availing credit on common inputs without maintaining separate records.
5. The appeal is disposed of by way of remand.
(Dictated in Court.) (Sahab Singh) Member (Technical) (S.S. Kang) Vice President rk 3