Custom, Excise & Service Tax Tribunal
M/S.Birla Corporation Ltd vs Cce, Jaipur-Ii on 26 November, 2014
IN THE CUSPTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, NEW DELHI, PRINCIPAL BENCH NEW DELHI
Date of Hearing/ Decision:26.11.2014
E/Stay/53498/2014 in Appeal No.E/53107/2014-EX(DB)
(Arising out of Order-in-Original No.JAI-EXCUS-002-COM-114-13-14 dated 27.02.2014 passed by the Commissioner of Central Excise, Jaipur-II (Rajasthan).)
M/s.Birla Corporation Ltd. Appellants Vs.
CCE, Jaipur-II Respondent
For approval and signature:
Honble Smt. Archana Wadhwa, Member (Judicial) Honble Shri Rakesh Kumar, Member (Technical) 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? Appearance: Rep. by Shri B.L. Narsimhan, Advocate for the appellant. Rep. by Shri Ranjan Khanna, DR for the respondent.
CORAM: Honble Smt. Archana Wadhwa, Member (Judicial) Honble Shri Rakesh Kumar, Member (Technical) Final Order No.54621/2014 Dated:26.11.2014 Per Archana Wadhwa:
After dispensing with the condition of pre-deposit of dues, we proceed to decide the appeal itself for disposal.
2. We find that there is gross valuation of principles of natural justice by the adjudicating authority in passing the present impugned order.
3. Proceedings were initiated against the appellant for denial of cenvat credit on various iron and steel items, on the allegations that the same were used as structural and in view of the Larger Bench decision of the Tribunal in the case of Vandana Global Ltd, they would not be eligible for the purpose of cenvat credit. During the course of adjudication, the appellant took a categorical stand that most of the iron and steel items were used in fabrication of capital goods or for repair and maintenance, in which case, they would be entitled to the benefit of cenvat credit.
4. By taking note of the above contentions of the appellant, office of the Commissioner sought a report from the jurisdictional Central Excise Authorities. In this connection, a letter dated 16.12.2013 written by the Superintendent is reproduced below for better appreciation:-
Please refer to the above Show Cause Notice. The Hqrs. Office has sought verification to the effect that the items on which cenvat credit was taken by you were used in the manufacture of capital goods, repair & maintenance of plant and machinery or in civil construction/structural work.
In order to conduct this verification, it is requested to provide following information/documents:-
(i) Issue slip from stores evidencing the issuance to particular department/section of the plant and purpose of issuance of the goods.
(ii) End use certificate issued by the concerned department after use of the issued goods in their section.
(iii) Chartered Engineer certificate showing the use of goods for particular purpose.
(iv) Details of capital goods manufactured during the relevant period.
(v) Any other document which can establish the use of impugned items in particular machine/section/capital goods. In response to the said letter, the appellant filed their reply dated 6.1.2014, producing all the evidence on record. For ready reference, the said letter is reproduced below:-
With reference to your letter no.1587 dated 30.12.2013 we are submitting the following:-
1. Item wise and year wise summary of disputed items (2 pages)
2. Sample of Drawings (22 nos) attached, which proves that we have used the said items for making the items and for repairing and maintenance.
3. We are also submitting the item wise, Year wise total bill amount where we have not taken the cenvat credit (9pages).
4. Some material issue passes and ledger (34 pages).
5. Certificate dated 19.10.2013 of our Shir S.K. Gupta, DGM(Engg.) From the above, it is very clear that we have taken CENVAT credit where it is available otherwise we have not taken. Tor steel is used only for the foundation of the machines, which is part of machine.
5. Subsequently, the Dy. Commissioner having jurisdiction over the appellants factory submitted a report under the cover of his letter dated 29.01.2014.The said report is a detailed report, taking into consideration the various items in question and reporting that most of the items have either been used in fabrication of capital goods or for repair and maintenance , whereas it is not possible to find out in respect of the certain items. The report also concluded that the assessee had not availed the credit on a large quantity of iron and steel items and as such, it can be safely concluded that quantity which have been used for civil and structural purposes.
6. Surprisingly the said report of the Dy. Commissioner, which was sought by the Commissioner himself, stands fully ignored by him while passing the present impugned order. For the reasons best known to him, the adjudicating authority has completely shut his eyes towards the said report. If the said report of the Dy. Commissioner was not to be taken into consideration by the adjudicating authority, we really fail to understand and appreciate as to why the report was called for. Probably the said report has not been referred to by him as the same is in favour of the assessee, to the major extent. Such an action, on the part of the adjudicating authority, cannot be appreciated inasmuch as the same reflects upon the biased & premature determination of their adjudication. Having said so, we deem it fit to set aside the impugned order and remand the matter to the Commissioner for fresh decision in the light of the report dated 29.01.2014 of the Dy. Commissioner. We also note that a major part of the demand is barred by limitation and the appellant would be within their right to contest the same on the ground of time bar. The stay petition as also appeal gets disposed of in the above manner.
(Archana Wadhwa) Member (Judicial) (Rakesh Kumar) Member (Technical) Ckp.
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