Custom, Excise & Service Tax Tribunal
Cce, Pondicherry vs M/S. Spic Pharmaceuticals Division on 8 July, 2009
IN THE CUSTOMS, EXCISE & SERVICE TAX
APPELLATE TRIBUNAL
SOUTH ZONAL BENCH AT CHENNAI
E/279/2003 and E/CO/28/2004
(Arising out of Order-in-Appeal Nos.24/2003 (P) & 20/2003 (P)(D) dated 18.2.2003 passed by the Commissioner of Central Excise (Appeals), Chennai)
For approval and signature:
Honble Smt. Jyoti Balasundaram, Vice President
Honble Dr. Chittaranjan Satapathy, Technical Member
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 should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
3. Whether the Members wish to see the fair copy of the Order?
4. Whether Order is to be circulated to the Departmental authorities?
CCE, Pondicherry Appellant
Vs.
M/s. SPIC Pharmaceuticals Division Respondents
Appearance Ms. Indira Sisupal, JDR for the Appellant Shri Savith V. Gopal, Advocate for the Respondent CORAM Honble Smt. Jyoti Balasundaram, Vice-President Honble Dr. Chittaranjan Satapathy, Technical Member Date of Hearing: 08.07.2009 Date of Decision: 08.07.2009 Final Order No. ____________ Per Jyoti Balasundaram Vide the impugned order challenged by the Revenue in the present appeal, the Commissioner (Appeals) has held that the assessees/respondents are eligible to credit of additional duty on the strength of debits of duty amount in the DEPB passbook, even though no additional duty was actually paid in cash. In doing so he relied on a decision of the Tribunal in the case of Polyhose India Pvt. Ltd. Vs. CCE 2003 (54) RLT 572.
2. We have heard both sides. We find that the decision relied on by the lower appellate authority is no longer good law in the light of the subsequent decision of the larger Bench of the Tribunal in Essar Steel Ltd. Vs. CCE 2004 (173) ELT 239 holding that mere debit in DEPB passbook is not sufficient for eligibility of MODVAT credit availed on the strength of Bill of Entry. Following the ratio of the larger Bench decision cited supra, we hold that credit is not admissible to the respondents. To this extent prayer of the Revenue is accepted. However, since at the relevant point of time there was a decision of the Tribunal namely the decision in Polyhose India (supra) holding that credit is admissible on the strength of debit notes for debiting in DEPB passbook we do not accept the prayer for imposition of penalty on the respondents. The Revenues appeal is thus partly allowed.
3. The cross-objection filed by the assessee is dismissed as it is only in the nature of comments upon/reply to the Revenues appeal.
(Dictated and pronounced in open court)
(Dr. Chittaranjan Satapathy) (Jyoti Balasundaram)
Technical Member Vice President
Rex
??
??
??
??
2