Custom, Excise & Service Tax Tribunal
) M/S.Jagannath Sponge Pvt.Ltd vs Commissioner Of Central Excise, ... on 9 November, 2017
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE
TRIBUNAL, KOLKATA
EASTERN ZONAL BENCH: KOLKATA
1-4) Appeal Nos. E/398/11, ST/159, 160, 170/11
(Arising out of Order-in-Appeal No.13-21/CE/BBSR-II/2011 dated 31.01.2011 passed by the Commissioner(Appeals), Central Excise, Customs & Service Tax, Bhubaneswar.)
1) M/s.Jagannath Sponge Pvt.Ltd.
2) M/s. Maa Tarini Industries Ltd.
3) M/s.MSP Sponge Iron Ltd.
4) M/s.Viraj Steel & Energy Ltd.
Applicant (s)/Appellant (s)
Vs.
Commissioner of Central Excise, Customs, & Service Tax, BBSR-II
Respondent (s)
Appearance:
Shri S.B.Sharma & Shri R.Sharma, Advocates for the Appellant (s) Shri S.Mukhopadhyay, Supdt.(AR) for the Revenue CORAM:
Honble Mrs. Archana Wadhwa, Member(Judicial) Date of Hearing/Decision :- 09.11.2017 ORDER NO.FO/A/77839-77842/2017 Per Mrs. Archana Wadhwa.
After hearing both sides I find that the appellant was availing Cenvat Credit of Service Tax paid on inward transportation of raw materials. The lower authorities, after due adjudication, denied a part of the said credit on the ground that a part of coal transported through the said services has resulted in production of coal fines and similarly iron ore transported has resulted in emergence of iron ore fines. Accordingly proportionate credit to that extent stands denied.
2. On appeal against the impugned order, the Commissioner(Appeals) observed that Tribunal in the case of Sponge Udyog Ltd. has interpreted the provisions in favour of the assessee thus not requiring any reversal. However, he also observed that the said decision of the Tribunal stands appealed against before the Honble Odisha High Court. Accordingly he set aside the orders and remanded the matter to the lower authorities for fresh decision after the outcome of the decision of the Honble Odisha High Court.
3. The contention of the ld.Advocate is that inasmuch as the law stands declared by the Tribunal, Commissioner(Appeals) should have followed the same and should have allowed the appeal instead of remanding the matters. He also submits that there is no stay of operation of the Tribunals order, in which case the same was binding upon the Commissioner(Appeals). For the above proposition he relies upon the Honble Supreme Courts decision in the case of U.O.I. vs. Kamalakshmi Finance Company Ltd. [1991 (55) ELT 433 (S.C.)].
4. After hearing the ld.AR for the Revenue, I find that there is no dispute that Kolkata Tribunal has held the disputed issue in favour of the assessee. There is also no dispute about the fact that the said decision has been appealed against before the Honble High Court of Odisha. There is also no dispute about the fact that Commissioner(Appeals) has followed the said decisions and has thus complied with declaration of law by the Honble Supreme Court in the case of Kamalakshmi Finance Company Ltd. (supra). However, he has remanded the matters with directions to the authorities below to re-decide the issue after the outcome of the Revenues appeal before the Honble High Court of Odisha.
5. The Honble Odisha High Courts decision would cover the disputed issue as and when declared. As such I find no infirmity in the impugned orders vide which the appellate authority has simplicitor director the Assisstant Commissioner to follow the Odisha High Courts decision, as and when the Revenues appeal stands decided. I am of the view that the appellant cannot be held to be aggrieved with such an order of Commissioner(Appeals). I find no merit in the appeal and accordingly reject the same.
(Pronounced and dictated in the open court.)
Sd/
(ARCHANA WADHWA) MEMBER(JUDICIAL)
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Appeal Nos.E/398/11, ST/159, 160, 170/11