Custom, Excise & Service Tax Tribunal
M/S. Ajinkya Enterprises vs Commissioner Of Central Excise, Pune on 9 December, 2016
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT NO. II APPEAL NO. E/1091 to 1098/08 [Arising out of Order-in- Appeal No. PII/165/08 dated 21-7-2008 passed by the Commissioner (Appeals), Central Excise Pune III Commissionerate] For approval and signature: Honble Mr Ramesh Nair, Member(Judicial) =======================================================
1. Whether Press Reporters may be allowed to see : No
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 Their Lordships wish to see the fair copy : seen
of the Order?
4. Whether Order is to be circulated to the Departmental: Yes
authorities?
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M/s. Ajinkya Enterprises
:
Appellant
VS
Commissioner of Central Excise, Pune
:
Respondent
Appearance
Shri. Shrikant Acharya, Partner for the Appellants
Shri. N.N. Prabhudesai, Superintendent(A.R.) for the Respondent
CORAM:
Honble Mr. Ramesh Nair, Member (Judicial)
Date of hearing: 9/12/2016
Date of decision: 6/1/2017
ORDER NO.
The fact of the case is that the appellant received HR/CR coils and availed the Cenvat credit thereon. They carry out the activity of procurement of HR/CR coils and processes such as de-coiling, cutting and slitting of HR steel coils and pickling and oiling the same. The said processed coils are cleared to SEZ unit. The department has raised the dispute that since activity carried out by the appellant are not amount to manufacture therefore they are not entitle for Cenvat credit. Accordingly, demand of Cenvat credit was confirmed vide various orders. The appellant being aggrieved by the said orders filed appeals before the Commissioner (Appeals) which came to be rejected therefore appellant filed appeal before this Cestat. This Tribunal in appeal bearing No. E/1099/08, E/715, 2710/09 vide Order NO. A/491-497/11/EB /C-II dated 23-6-2011 allowed the appeals holding that whether or not activity amounts to manufacture but since the duty was paid on processed HR/CR sheet the Cenvat credit is admissible. Being aggrieved by this Tribunal Order, revenue filed this appeal before the Honble Bombay High Court under Central Excise Appeal No. E/29/12 which was disposed by Honble High Court order dted 26-6-2012 whereby Tribunal order dated 23-6-2011 was upheld and Revenues appeal was dismissed. With this conclusion of the proceedings the entire demand of duty penalty and interest stood dropped. When this mater was under proceedings from Adjudicating authority till the CESTAT, appellant had been filing various rebate claim of duty paid on their final product towards goods supplied to SEZ, considering the same as export. The sanctioning authority though sanctioned the refund claim but sanction amount was appropriated against the demand confirmed vide Order NO. 02/CX/2007 dated 23-5-2007 as discussed above. Against this appropriation of the sanction refund amount appellant filed appeals before Commissioner(Appeals), the Commissioner(Appeals) also rejected the appeal on the ground that demand case is yet to be settled. Being aggrieved by the impugned orders of the Commissioner(Appeals), appellant filed these appeals.
2. Shri. Shrikant Acharya, Partner of appellant firm submits that in all these appeal s though refunds were sanctioned but the same was appropriated against the confirmed demand in the order in-Original dated 23-5-2007. Now the demand confirmed under said order has been set aside by this Tribunal, which was upheld by the Honble High Court vide order dated 26-6-2012 therefore the amount appropriated by the sanctioning authority stand refundable to the appellant.
3. Shri. N.N. Prabhudesai, Ld. Superintendent(A.R.) appearing on behalf of the Revenue reiterates the findings of the impugned order.
4. I have carefully considered the submissions made by both sides and perused the record.
5. I find that issue lies in very narrow compass. All these appeals were filed by the applicant against appropriation of the sanctioned refund towards confirmation of demand in the order-in-original No. 02/CX/2007 dated 23-5-2007. As per the facts discussed above and the submissions made by the appellant. Demand confirmed in the order-in-original dated 23-5-2007 has been set aside by this tribunal order dated 23-6-2011 and the same was upheld by the Honble Bombay High Court vide order dated 26-6-2012. All the refund sanctioned and appropriated in the Order-in-Orignal now become refundable to the appellant. Since the demand has been dropped now status is as if demand was not recoverable. Though the appellant pursuing their appeals against the demand, department should not have appropriated the amount of rebate against confirmation of demand. In these circumstances, appellant also entitle for the interest from the filing of rebate application till the release of the rebate amount to the appellant. As per my above discussion, these appeals are allowed with consequential relief, if any, in accordance with law.
(Order pronounced in Court on ________________) Ramesh Nair Member (Judicial) sk 2 E/1091 to 1098/08