Custom, Excise & Service Tax Tribunal
M/S Tirupati Structurals Limited vs Cce & St, Ghaziabad on 6 September, 2017
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL Old Red Building, 38 M.G. Marg, Civil Lines, Allahabad 211 001 COURT NO. II DATE OF HEARING : 06/09/2017. DATE OF DECISION : 06/09/2017. Excise Appeal No. 70372 of 2016 (SM) [Arising out of the Order-in-Appeal No. GZB/EXCUS/000/APP/ 240-241/15-16 dated 07/01/2016 passed by The Commissioner (Appeals), Meerut II, Central Excise & Customs, Noida.] M/s Tirupati Structurals Limited Appellant Versus CCE & ST, Ghaziabad Respondent
Appearance Shri Rajesh Chhibber, Advocate for the Appellant.
Shri Mohd. Altaf, Authorized Representative (DR) for the Respondent.
CORAM: Honble Shri Ashok Jindal, Member (Judicial) Final Order No. _70948/2017 Dated : 06/09/2017 Per. Ashok Jindal :-
The appellant is in appeal against the impugned order wherein Cenvat credit availed by the appellant under Rule 16 (1) of Central Excise Rules, 2002 has been denied.
2. Heard the parties.
3. As these are periodical show cause notices. For the earlier period, in appellants own case for the earlier period, vide final order No. A/51764/2015 SM (BR) dated 19/05/2015, this Tribunal observed as under :-
4. Heard ld. AR for Revenue and perused the records. It is an undisputed fact that the appellant had paid the duty on the final product at the time of clearance from the factory, which was returned back as defective for accomplishing the purpose indicated in Rule 16 (1) of the Central Excise, Rules, 2002. Further, I find that upon receipt of the goods, the same have been duly reflected/ entered in the Daily Stock Account i.e. RG-1 Register maintained by the appellant. The entries have been made in the said register on the basis of the original invoices, in the cover of which the goods were initially removed from the factory. Hence, it is erroneous to assume that the goods were not identifiable and relatable to the duty paid documents and also it is not proper to conclude that no records have been maintained for return of defective goods. It is not in dispute that the Daily Stock Account has not been maintained properly by the appellant.
5. Therefore, I am of the considered view that cenvat credit taken by the appellant on such duty paid defective goods received in the factory for carrying out the processes under Rule 16(1) of the rules are eligible for cenvat credit and accordingly, the impugned order confirming the Cenvat demand is set aside and the appeal filed by the appellant is allowed.
and final order No. A/51571/2015 SM (BR) dated 28/04/2015, this Tribunal observed as under :-
8. On perusal of the show cause notice, I find that only allegation against the appellant is that they have not received the rejected goods and received only waste and scrap /ash on which they have taken Cenvat credit which is not permissible and said fact has been examined by the learned Commissioner (Appeals) who has observed as under:
.. A perusal of the said details and documents available on record shows the return of the rejected material like PVC Foam Board/ sheet, PVC Fitting, PVC Pipes, HDPE Pipes, PVC Elbow, PVC Duct Pipe etc. I find that none of the related documents show the receipt of waste and scrap in the instant period as held by the adjudicating authority in the impugned order. Thus I do not agree with the conclusion made by the adjudicating authority in the impugned order that the returned goods were in form of waste and scrap or broken form instead of finished goods.
9. The observation of the learned Commissioner (Appeals) has been accepted by the Revenue and not challenged before me. Therefore, said observation of the learned Commissioner (Appeals) has attained finality wherein it has been held that goods returned by the appellant are not waste and scrap/ash and they are rejected goods. Therefore, the show cause notice is not sustainable in the eyes of law. Whatever observations were made by the Commissioner after that are not part of the show cause notice. Therefore same is not required to be considered by me. In these circumstances, I hold that appellant has taken Cenvat credit correctly. Consequently the impugned order is set aside and appeal is allowed with consequential relief, if any.
4. The facts of the case are identical to the facts of the earlier show cause notices issued to the appellant, therefore, relying on the precedent decision of the Tribunal in appellants own case, I hold that appellant has correctly taken the Cenvat credit. Therefore, the impugned order deserves no merit. Hence, set aside. Consequently, the appeal is allowed.
(Dictated and pronounced in open court.) (Ashok Jindal) Member (Judicial) PK 4 EX/70372 of 2016