Custom, Excise & Service Tax Tribunal
National Polyplast (I) Ltd vs Cce, Pondicherry on 30 August, 2013
IN THE CUSTOMS, EXCISE & SERVICE TAX
APPELLATE TRIBUNAL
SOUTH ZONAL BENCH, CHENNAI
E/COD/41135 & 41138/2013 and E/ST/41136 & 41137/2013
and
E/41462 & 41462/2013
(Arising out of Order-in-Appeal Nos. 52 & 53/2012 (P) dated 20.2.2013 passed by the Commissioner of Central Excise (Appeals), Chennai)
For approval and signature:
Honble Shri P.K. Das, Judicial 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?
National Polyplast (I) Ltd. Applicant
Vs.
CCE, Pondicherry Respondent
Appearance Shri Arvind Baheti, Consultant, for the Appellant Shri K.S.V.V. Prasad, JC (AR) for the Respondent CORAM Honble Shri P.K. Das, Judicial Member Date of Hearing: 30.08.2013 Date of Decision: 30.08.2013 Final Order No. ____________ All the applications are arising out of a common order and hence all are taken up together for disposal.
2. The applicant has filed the applications for condoning the delay of 10 days involved in the filing of the appeals. The learned counsel submits that the delay was occurred for filing ROM before the Commissioner (Appeals). After considering the submissions of both sides, I find that there is sufficient reason for condoning the delay of 10 days involved in the filing of the appeals. Accordingly, I condone the delay of 10 tens involved in the filing of appeals and allow the applications.
3. After hearing both sides, I find that the issue involved in these appeals lie in a narrow compass and therefore, after dispensing with predeposit, I proceed to decide the appeals with the consent of both sides.
4. Heard both sides and perused the records.
5. The applicant is engaged in the manufacture of plastic crates and Polyethelene Terephthalate (PET) pre-forms and procured certain inputs from 100% EOU in terms of provisions of Section 3 of the Central Excise Act, 1944 r/w Notification No.23/2003-CE dated 31.3.2003.
6. The learned counsel submits that CENVAT credit was denied under Rule 3(7)(a) of the CENVAT Credit Rules, 2004. It is alleged that the applicant availed the credit in violation of the formula of the said rules. The learned counsel submits that the appellate authority proceeded on the basis that EOU paid duty under Sl. No.1 of the said Notification. He submits that the Commissioner (Appeals) proceeded on the basis that the availment of credit on CVD is incorrect. It is also submitted that the Commissioner (Appeals) proceeded on the basis of some of the invoices of EOU where they have paid duty under Sl. No. 1 of Notification No. 23/2003 (supra). It is contended that the EOU paid the duty under Sl. No. 2 of the said Notification.
7. On the other hand, the learned AR submits that the original authority has given a clear finding that the EOU paid duty under Sl. No. 1 of the said Notification, which is not contradicted by the appellant before the Commissioner (Appeals). It is also contended that Commissioner (Appeals) has already granted the benefit of CENVAT credit on education cess and SHE cess. It is his contention that the Commissioner (Appeals) has already examined the facts in detail and therefore the order is correct.
8. After considering the submissions of both sides and on perusal of the records, I find that there is a factual dispute on the availment of the credit on the basis of some invoices wherein the applicants contention that EOU has paid the duty under Sl. No. 2 of the said Notification which is required to be examined by the original authority. Hence the other issue, as contended by the learned counsel, has to be examined by the original authority. Accordingly, the order passed by the Commissioner (Appeals) insofar as the denial of credit on CVD and education cess and SHE cess on CVD is set aside and the matter is remanded to the original authority to decide afresh after considering the submissions of the appellant. Needless to say that the appellant should be given a reasonable opportunity of being heard. The appeals are allowed by way of remand. The stay applications are disposed of. The COD applications are allowed.
(Dictated and pronounced in open court) (P.K. Das) Judicial Member Rex 4