Custom, Excise & Service Tax Tribunal
M/S. Surya Roshni Ltd vs C.C.E., Indore on 26 November, 2013
IN THE CUSTOMS, EXCISE & SERVICE TAX
APPELLATE TRIBUNAL
WEST BLOCK NO.2, R.K. PURAM, NEW DELHI 110 066
Date of Hearing 26.11.2013
For Approval &Signature :
Honble Mrs. Archana Wadhwa, Member (Judicial)
1.
Whether Press Reporter may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
No
2.
Whether it would be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
No
3.
Whether Lordships wish to see the fair copy of the order?
Seen
4.
Whether order is to be circulated to the Department Authorities?
Yes
Appeal No.E/3758/2005-EX[SM]
[Arising out of Order-in-Original No.68/Commr/CEX/IND/2005, dated 12.09.2005 passed by the C.C.E., Indore]
M/s. Surya Roshni Ltd. Appellant
Vs.
C.C.E., Indore Respondent
Appeal No.E/3759/2005-EX[SM] [Arising out of Order-in-Original No.68/Commr/CEX/IND/2005, dated 12.09.2005 passed by the C.C.E., Indore] Shri Amba Prasad Sharma CGM, M/s. Surya Roshni Ltd. Appellant Vs. C.C.E., Indore Respondent Appeal No.E/3760/2005-EX[SM] [Arising out of Order-in-Original No.68/Commr/CEX/IND/2005, dated 12.09.2005 passed by the C.C.E., Indore] Shri Prakash Kumar JM (Commercial), M/s. Surya Roshni Ltd. Appellant Vs. C.C.E., Indore Respondent Appearance Ms. Shruti Karnatak, Advocate Shri B.L. Narasimhan, Advocate - for the appellant Shri Pramod Kumar, Advocate - for the respondent CORAM: Honble Mrs. Archana Wadhwa, Member (Judicial) Final Order Nos.58476-58478, dated 26.11.2013 Per Honble Mrs. Archana Wadhwa :
The impugned orders stand passed by the C.C.E. in de novo proceedings when the matter was remanded by the Tribunal for fresh adjudication in the light of directions made by the Tribunal. The disputes relate to are availability of MODVAT credit in terms of the erstwhile Rule 57H and allowing credit for transitional period. Prior to 01.03.1997, the appellants final product, i.e., GSL lightings was exempted from duty and became dutiable with effect from 01.03.1997. As a consequence, the appellants became entitled to the credit of duty paid on the inputs lightings in stock as on 01.03.1997, either as such or in the shape of semi- finished goods or finished goods. The said credit claimed by the appellants to the extent of Rs.6,44,340/- was denied by the original adjudicating authority on the ground that the inputs which were received first by the appellants stand used by them in the manufacture of the final product which are already cleared. As such, the invoices being produced by the assessee are not relatable to the inputs which are in stock. As such by applying the principle of first-come first out, he rejected the assessees claim.
2. The said order was appealed by the appellants before the Tribunal, who vide its Final Order No.90-92/04-B, dated 01.01.2004, remanded the matter to the Commissioner for afresh adjudication in the light of the following directions made by the Tribunal:-
There is a force in the submissions of the learned Advocate that the inputs received by them, were duty paid and an opportunity should have been given to them for furnishing the necessary invoices in support of their contention that the inputs lying in stock as well as contained in the GSL bulb, were duty paid. We, therefore, remand this aspect to the jurisdictional Adjudicating Authority for verifying the duty paid character of the inputs in question. We direct the appellants to produce the necessary material / invoices before the Adjudicating Authority within one month of this order and then the Adjudicating Authority will re-adjudicate their eligibility to MODVAT credit under Rule 57H of the Central Excise Rules, 1944. We are also leaving the question of imposition of penalty on all the appellants open to be decided by the Adjudicating Authority after taking the decision in respect of eligibility to MODVAT credit under Rule 57H. All the three appeals are disposed of in the above manner.
3. The Commissioner in the present impugned order again rejected the MODVAT credit as also imposed penalties on the three appellants by arriving at the findings that consumption of inputs have to be considered on first-come first-out basis. He observed as under:-
A wholesome reading of the Hon'ble CESTAT order as mentioned above categorically conveys that two minimum conditions are to be fulfilled for the availment of MODVAT credit under Rule 57H. The first condition is that the inputs should be in physical tangible even if in the semi processed stage or contained in the final product. The next condition is that the duty paid character of these inputs should be established. No doubt the second condition can be established by means of genuine duty paying documents but it is equally necessary to prove the existence of in such inputs in tangible physical form.
4. As seen from the above, though the adjudicating authority has correctly recorded that there are two conditions which stand imposed by the Tribunal for de novo adjudication but has wrongly added the third condition itself it is equally necessary to prove the existence of in such inputs in tangible physical form. There is no dispute that there was stock of the inputs lying in the appellants factory as on 01.03.19997 either as such or as contained in their final product. There is also no dispute that such stock was duty paid. The only reason adopted by the adjudicating authority is that the stock of the inputs received by them earlier stands utilised and cleared in the shape of final product. In my views, there is justification for adoption of the above legal principle. As long as the inputs are available, as on 01.03.1997 in any shape or condition, the credit involved therein has to be allowed based upon the documentary evidence reflecting upon the payment of duty on the same.
5. At this stage I may take note of Tribunals decision in the case of Hind Lamps Vs. C.C.E., Kanpur reported in 2007 (219) E.L.T. 321 (Tri. Del.), wherein in respect of the same product, i.e., GSL lightings and the same date of excisable of the same, i.e., 01.03.1997, the Tribunal allowed the CENVAT credit in terms of Rule 57 of the Act.
6. In view of the above, I set aside the impugned order denying the CENVAT credit and imposing penalties on all the 3 appellants and allow all the appeals with the consequential relief to the appellants.
7. The appeals are disposed of in the above manner.
(Dictated and pronounced in the Open Court) (Archana Wadhwa) Member (Judicial) SSK -2-