Custom, Excise & Service Tax Tribunal
M/S,Godrej Consumer Products Ltd vs Cce, Indore on 2 June, 2015
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL,
WEST BLOCK NO.II, R.K. PURAM, NEW DELHI-110066.
Court No.III
E/stay/54626/2014 in E/54085/2014
(Arising out of OIA No.56/COMMR/IND/CEX/2014 dt.3.6.14 passed by Commissioner of CCE (Appeals), Indore)
Date of Hearing/Decision: 02.06.2015
For approval & Signature:
Honble Mr. Rakesh Kumar, Member (Technical)
Honble Smt.Sulekha Beevi C.S., 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 their Lordships wish to see the fair copy of the order?
seen
4.
Whether order is to be circulated to the Department Authorities?
Yes
M/s,Godrej Consumer Products Ltd. Appellant
Vs.
CCE, Indore Respondent
Appearance:
Present for the Appellant: Shri B.L.Narsimhan, Advocate Present for the Respondent: Shri Pramod Kumar, JCDR Coram: Honble Mr. Rakesh Kumar, Member (Technical) Honble Smt.Sulekha Beevi C.S., Member (Judicial) Final Order No. 51935/2015 Per: RAKESH KUMAR The facts leading to filling of this appeal and stay application are, in brief, as under:-
1.1 The Appellants are manufacturer of consumer products including soap. The head office of the appellant is registered as input service distributor. Their manufacturing are units located at Malanpur (M.P.), Baddi (Himachal Pradesh), Assam, and Jammu. While Malanpur unit is not exempt from payment of duty and is paying duty and the Baddi unit is fully exempt from duty under notification No. 50/03-CE. The Assam unit and Jammu Unit availed the exemption notification No. 56/02-CE and 32/99-CE respectively and paid duty as per Scheme of these exemption notifications and availed exemption in the form of refund of duty paid through PLA. The dispute in this case is in respect of advertisement, and sale promotion services, courier service and business auxiliary services etc. which were being availed by all the units. The Bulk of the credit is in respect of advertisement services. The service providers were issuing invoices in the name of head office which is registered as input service distributor (ISD). The head office was distributing the credit to its various units including Malanpur unit by issue of ISD invoices. The dispute in the present case is in respect of Malanpur unit. The departments contention is that the credit of service distributed to Malanpur unit also included the credit attributable to Baddi unit. It is on this that the show cause notice dated 22.4.13 was issued for recovery of allegedly wrongly availed credit amounting to Rs.17,11,39,812/- for the period April, 2008 to March, 2012 alongwith interest on it under section 11AB and also for imposition of penalty on the appellant under Rule 15(2) of Cenvat Credit Rules, 2004 read with section 11AC. The show cause notice also sought imposition of penalty.
1.2 The show cause notice was adjudicated vide Order-in-Original dt.3.6.14 by which the Commissioner confirmed the Cenvat credit demand of Rs.12,15,64,838/- against the appellant unit alongwith interest and imposed penalty of equal amount on them under Rule 15(2) of Cenvat Credit Rules, 2004. The Commissioner dropped remaining amount on the ground that the same pertained to Jammu an Assam units and which was not to be treated as exempt. Against this order, this appeal has been filed alongwith stay application.
2. Though, today the matter was listed for hearing the stay application, after hearing the matter for some time, we find that the matter can be decided at this stage. Accordingly, the requirement of pre-deposit is waived and with the consent of both sides, it was taken for final disposal.
3. Shri B.L.Narsimhan, Advocate, the learned Counsel for Appellant, pleaded that the stand of the appellant from the very beginning has been that the head office registered as ISD before distributing the input service credit to the appellants unit at Malanpur, Assam and Jammu unit had reversed the credit attributable to exempt unit at Baddi in proportionate to its turnover, that this point has been specifically mentioned raised in para 4.1 to 4.7 of the reply to the show cause notice and further explained in para D.1 and para F.7 of the reply to the show cause notice, that this point is also specifically recorded in para C.1 and D.5 of the Order-in-Original, that still no finding has been given by the Commissioner on this point and the Commissioner adjudicated this matter on assumption, that the head office as an ISD disturbed the entire input service credit to Malanpur unit, Assam unit and Jammu unit without excluding the credit attributable to Baddi unit, that the Appellant had also raised the issue of limitation as is clear from the Order-in-Original which has been recorded in para M-1 to M-25 pleading that extended period is not invokable and hence the demand is barred by limitation, but no finding has been given by the Commissioner on this plea, that the impugned order is therefore, a non-speaking and in view of this, that the same has to be remanded for de novo adjudication.
4. Shri Pramod Kumar, learned JCDR, while defending the impugned order pleaded that the points raised by the appellant in the grounds of appeal which have been recorded in the Order-in-Original but the same have not been discussed by the Commissioner.
5. We have considered the submissions from both sides and perused the records.
6. The appellants head office is registered as ISD and their units as located at Malanpur, Assam, Jammu and Baddi. Baddi unit is fully exempt from duty as the same is availing the benefit of Notification NO.50/03-CE while unit at Mallanpur cleared its products on payment of duty. Assam unit and Jammu unit availed the exemption under Notification No.32/99-CE and Notification No.56/02-CE respectively and initially cleared the goods on payment of duty by using Cenvat credit available at the end of the month to the extent possible and claimed exemption under these notifications of the duty if any paid through PLA. The departments allegation is that head office, has distributing the credit attributable to fully exempt unit at Baddi to Malanpur. The appellants stand is that the head office, before distributing the credit had reversed the credit attributable to Baddi unit in proportion to the turnover and only the remaining credit had been distributed to Assam, Malanpur and Jammu, that this point has been specifically raised in the reply to the show cause notice but absolutely no specific finding recorded by the Commissioner in the impugned order on this point. Similarly, the appellant had raised the question of limitation and but the Commissioner has not given any finding whatsoever on this point. The Commissioner has passed a non-speeding order. Hence, the same is set aside and the matter is remanded to the Commissioner for de novo adjudication after hearing the appellant on merits as well on limitation.
(Pronounced & dictated in the open court) (Sulekha Beevi C.S.) (Rakesh Kumar) Member (Judicial) Member (Technical) mk 5