Customs, Excise and Gold Tribunal - Bangalore
Sunder Steels Ltd. vs The Commissioner Of C. Excise on 10 October, 2005
JUDGMENT T.K. Jayaraman, Member (T)
Page 226
1. This is an appeal filed against the Order-in-Appeal No. 189/2004 dated 30th November, 2004, passed by the Commissioner of Customs & Central Excise (Appeals-II), Hyderabad.
2. Shri T. Ramesh, learned Advocate appeared for the appellants and Shri K.S. Bhat, learned SDR appeared on behalf of the Revenue.
3. The learned Advocate submitted that there was a dispute regarding status of the appellant's unit as to whether it was an "integrated steel plant" or not. Initially the appellants were discharging duty liability on the basis of compounded levy scheme. Ultimately, the issue was resolved in favour of the appellants holding that their unit to be "integrated steel plant". The consequence is that the unit would be entitled for the benefit of the modvat credit. After taking into account the duty liability and the payment effect by the appellants, the learned Advocate submitted that they would be entitled for taking modvat credit to the tune of Rs. 15,84,287. The lower authorities have denied the benefit for the reason that the modvat credit procedure was not followed. He said that in view of the dispute, during the disputed period the appellants could not have followed the modvat procedure. Relying on the Hon'ble Supreme Court decision in the case of Formica India Division v. CCE , the learned Advocate maintained that they would be entitled for the benefit.
4. The learned SDR reiterated the order-in-original and the order-in-appeal.
5. We have gone through the records of the case carefully. Since the Hon'ble Supreme Court has decided that the appellant's unit is an 'integrated steel plant', they are entitled for the benefit of the modvat credit; they have not followed all the statutory procedures in respect of the modvat credit during the disputed period for obvious reasons. The Hon'ble Apex Court in the case of Formica India Division v. CCE (supra) set aside the Tribunal's order holding that the benefit of notification No. 71/71-CE cannot be denied on technical ground of non-compliance with Rule 56A procedure when the assessee contested the dutiability of the intermediate products, thus they could not have ordinarily complied with the procedure of the Rule 56A. The ratio of the above decision is squarely applicable. In Page 227 these circumstances, we set aside the impugned order and allow the appeal with consequential relief.
(Operative portion of the order has been pronounced in the open court on completion of hearing)