Customs, Excise and Gold Tribunal - Delhi
M/S. Shree Raj Texchem Ltd. vs C.C.E. Jaipur on 29 December, 2000
Equivalent citations: 2001(129)ELT140(TRI-DEL)
ORDER K. Sreedharan, J.
1. Show cause notice dt. 30.5.96 was issued to the appellant calling upon him to state why Rs.2,05,017/- wrongly availed as modvat credit should not be recovered from them under Rule 57-U of the C.E. Rules, 1944 and why penal action should not be taken under Rule 173Q. While adjudicating on that notice, by Order-in-Original No.159/97-CE dt. 10.7.97, the adjudicating authority observed "in the light of above said discussion & findings, I do not disallow credit of Rs.2,05,017/- to M/s. Shree Rajasthan Texchem Ltd. Dungarpur and drop further proceedings as initiated against them under show cause notice dt. 30.5.96". This order was challenged by the Revenue in appeal before the Commissioner (Appeals). The prayer before the Asst. Commissioner was "it is therefore prayed that the matter may be examined for determination of above discussed points and correctness or otherwise of Order-in-Original No.159/97-CE(D) dt. 9.7.97 (allowing a credit of Rs.59,597/- to the assessee) in view of above mentioned grounds of appeal and/or order as deemed fit may be passed to meet the ends of the justice". In pursuance of this prayer made by the Revenue, the appellate authority while passing Order-in-Appeal No. 715 (KDT) CE/JPR-II/2000 dt. 17.7.2000, granted the following relief - "Hence the impugned order has incorrectly been passed and is set aside and the respondent directed to repay the amount of Rs.2,05,017/- wrongly availed as modvat credit, under Rule 57U of the Central Excise Rules, 1944".
2. Ld. Counsel representing the appellant submitted that the Commissioner was clearly in error in granting relief which was not prayed for by the Revenue in their appeal. Memorandum of appeal filed before the appellate authority show that the Revenue was challenging the credit of Rs.59,597/- availed of by the assessee and nothing more than that. When such was the specific claim raised in the Memo. of appeal, I think that ld. Counsel is justified in stating that the appellate authority wrongly granted a larger relief. The assessee was not notified the intention of the authority to grant a larger relief to the revenue that what was prayed for in the appeal.
3. In the above situation, I waive the pre condition of deposit for entertaining this appeal as contemplated by Section 35F of the Central Excise Act. Respondents are directed not to take any coersive step for recovery of the amount covered by the order impugned in this appeal until further orders.
4. Office is directed to post this appeal in the usual course.
(Pronounced and dictacted in the Court)