Custom, Excise & Service Tax Tribunal
M/S Opel Alloys Pvt. Ltd vs Cce, Ghaziabad on 20 August, 2008
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL NEW DELHI PRINCIPAL BENCH - COURT NO. 1 Excise Appeal No. 3458 of 2006 (Arising out of Order-in-Appeal No. 140-CE/GZB/2006 dated 07.09.2006 passed by the Commissioner of Central Excise (Appeals), Ghaziabad). DATE OF HEARING : 20.08.2008 DATE OF DECISION : 20.08.2008 FOR APPROVAL AND SIGNATURE : HONBLE MR. JUSTICE S.N. JHA, PRESIDENT 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 their Lordships wish to see the fair copy of the Order ? 4. Whether Order is to be circulated to the Departmental Authorities? M/s Opel Alloys Pvt. Ltd. . Appellant (Rep by Sh. Prem Ranjan, Adv.) VERSUS CCE, Ghaziabad . Respondent
(Rep. by Sh. , DR) CORAM : HONBLE MR. JUSTICE S.N. JHA, PRESIDENT ORDER NO.______________________________ PER JUSTICE S.N. JHA :
The dispute in this appeal by the assessee arising from the order-in-appeal of the Commissioner (Appeals), Meerut-I, dated 08.09.2006 and order-in-original of the Assistant Commissioner, Ghaziabad, dated 22.03.2006 is whether suo motu credit taken by the party without valid duty paying document is admissible or not. The appellant imports Heavy Melting Scrap (HMS) for manufacture of ingots in their factory premises. According to them, for want of weighment facility at the place of import, namely, ICD, Tughalkabad, New Delhi, raw-materials are weighed only at the factory premises. It so happens that sometimes raw-materials are found in excess of the quantity shown in the bill of entry, and sometimes they are less than the quantity shown. The appellant paid duty by TR-6 challan on the basis of quantity shown in the bill of entry and took Cenvat Credit. The case of the Department is that taking credit suo motu, is not in accordance with the rules and, therefore, the appellant is liable to reverse the credit. By the impugned order, the appellant was directed to reverse credit to the extent of Rs. 1,49,358/- with interest on the said amount, and penalty of equal amount was also imposed.
2. After hearing the parties, I am, prima facie, of the view that taking Cenvat Credit by the appellant in the aforesaid manner may be bonafide. In any case, it did not result in revenue loss. On behalf of the Revenue, however, it was submitted that the appellant can take Cenvat Credit only on the amount of countervailing duty, and not basic customs duty and other amount(s) which the appellant is required to pay. Thus, if the appellant has paid entire duty including basic customs duty and other amounts by TR-6 challan, they are not entitled to Cenvat Credit for the entire amount. They can take credit to the extent of countervailing (excise) duty.
3. After making submissions for some time, the parties agreed that since the controversy requires verification of facts, it would be appropriate to send the matter back to the original authority for de novo adjudication.
4. In the result, the impugned orders, as aforesaid, are set aside and the matter is sent back to the original authority i.e Assistant Commissioner, Central Excise, Division IV, Ghaziabad, for de novo adjudication. In order to facilitate early adjudication of the dispute, I direct the appellant to appear before the original authority on 6th October, 2008.
(Dictated and pronounced in the open Court on the 20th day of August, 2008) (JUSTICE S.N. JHA) PRESIDENT Golay