Bombay High Court
Hindustan Petroleum Corporation Ltd vs The Commissioner Of Cgst And Central ... on 15 October, 2018
Author: Riyaz I. Chagla
Bench: M.S.Sanklecha, Riyaz I. Chagla
1 22a) cexa68-18.doc
SAS
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
CENTRAL EXCISE APPEAL NO.68 OF 2018
Hindutan Petroleum Corpn. Ltd. ..Appellant
V/s.
The Commissioner of CGST & Central
Excise, Navi Mumbai Commissionerate ..Respondent.
Ms.Mansi Patil for the appellant.
Mr.Vijay Kantharia with Mr.J.B.Mishra for the respondent.
CORAM: M.S.SANKLECHA AND
RIYAZ I. CHAGLA, JJ.
DATE : OCTOBER 15, 2018 P.C.:-
This appeal under section 35G of the Central Excise Act, 1944 challenges the order dated September 28, 2017 passed by the Custom, Excise and Service Tax Appellate Tribunal, Mumbai (the Customs, Excise and Service Tax Appellate Tribunal (for short "the Tribunal")).
2. Ms.Manasi Patil, the learned counsel appearing for the appellant urges the following substantial questions of law for our consideration is :-
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2 22a) cexa68-18.doc " a) Whether on the facts and in the circumstances of the case and in law, the Tribunal was justified in holding that the appellant did not have sufficient unutilised credit balance during each of the months for which the demand is raised in the face of the Chartered Accountant's certificate on record ?
b) Whether on the facts and in the circumstances of the case and in law, the Tribunal was justified in holding that interest is payable to the extent of credit taken even when the unutilised credit available during the entire period of demand till reversed was in excess of credit taken ? "
3. This appeal is admitted on the above two substantial questions of law.
4. At the request of the parties, the appeal is taken up for final disposal as the dispute is within a narrow compass.
Regarding question (a)
5. The impugned order dated September 29, 2017 of the Tribunal confirms the demand of interest for the period commencing with the Cenvat Credit taken by the appellant till it is voluntarily reversed. This was after rejecting the evidence in the form of Chartered Accountant's certificate which shows month- ::: Uploaded on - 19/10/2018 ::: Downloaded on - 21/10/2018 23:26:53 :::
3 22a) cexa68-18.doc wise balance of credit available. This would establish that the appellant had total credit available in excess of that utilised during the months for which demand has been made. Thus, it follows that the wrongly taken credit was not utilised by the appellant so as to charge any interest.
6. The impugned order of the Tribunal has disregarded the Chartered Accountant's certificate and without giving any reasons came to the conclusion that the appellant did not have excess unutilised credit available during the month for which demand was issued. Thus, this makes the order bad as being an order without reasons. In the above view, the impugned order dated September 28, 2017 is set aside and the appeal is restored to the file of the Tribunal.
Regarding question (b)
7. This question would arise after the Tribunal renders a finding of fact on question No. (a) after considering the evidence already on record in respect of the unutilised Cenvat credit during each of the months for which demand has been raised. Thus, the answer to the question would only arise, if factually the Tribunal ::: Uploaded on - 19/10/2018 ::: Downloaded on - 21/10/2018 23:26:53 ::: 4 22a) cexa68-18.doc on remand comes to the view that excess unutilised cenvat credit is available.
8. In the above view, the impugned order dated September 28, 2017 is quashed and set aside. The appeal is restored to the Tribunal for fresh consideration after considering the evidence already on record, including Chartered Accountant's certificate.
9. The appeal is disposed of in terms of above.
(RIYAZ I. CHAGLA, J.) (M.S.SANKLECHA, J.) ::: Uploaded on - 19/10/2018 ::: Downloaded on - 21/10/2018 23:26:53 :::