Custom, Excise & Service Tax Tribunal
M/S. Sundaram Industries Ltd vs Cce, Maduari on 3 April, 2014
IN THE CUSTOMS, EXCISE & SERVICE TAX
APPELLATE TRIBUNAL
SOUTH ZONAL BENCH, CHENNAI
Appeal No. E/273 & 370/2009
(Arising out of Order-in-Appeal No. 27/2009 dated 23.1.2009 and No.96/2009 dated 25.3.2009 passed by the Commissioner of Central Excise (Appeals), Madurai)
For approval and signature:
Honble Shri P.K. Das, Judicial Member
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 the Members wish to see the fair copy of the Order?
4. Whether Order is to be circulated to the Departmental authorities?
M/s. Sundaram Industries Ltd. Appellant
Vs.
CCE, Maduari Respondent
Appearance Shri S. Muthuvenkataraman, Advocate, for the Appellant Shri P. Arul, Superintendent (AR) for the Respondent CORAM Honble Shri P.K. Das, Judicial Member Date of Hearing: 03.04.2014 Date of Decision: 03.04.2014 Final Order No. 40320 & 40321/2014 Common issue involved in these appeals and both are taken up together for disposal.
2. Heard both sides and perused the records.
3. The relevant facts of the case, in brief, are that the appellants are engaged in the manufacture of Rubber mix/compound of various description/grades and moulded rubber products falling under Chapter 40 of CETA, 1985. They availed CENVAT credit on inputs and capital goods used in the manufacture of dutiable final product as well as exempted goods in respect of clearance to M/s. Neyveli Lignite Corporation at nil rate of duty. The adjudicating authority confirmed the demand of 10% on the price of the exempted final products of Rs.16,54,398/- and Rs.18,76,024/- under Rule 6(3) of CENVAT Credit Rules, 2004 read with Section 11A of Central Excise Act, 1944 along with interest and penalty. Commissioner (Appeals) upheld the adjudication order.
4. The learned counsel for the appellant submits that in a similar situation, the Tribunal in the case of Sundaram Industries Vs. CCE vide Final Order No. 40530/2013 dated 29.10.2013 allowed the appeal filed by the assessee.
5. The learned AR on behalf of Revenue submits that in view of the amendment of Rule 6 of CENVAT Credit Rules, 2004 retrospectively by Section 73 of the Finance Act, 2010, they have to file an application before the Commissioner of Central Excise with documentary evidence within a period of six months from the Finance Bill, 2010 receives the assent of the President. He submits that they have not complied with the procedure of the retrospective amendment of the provisions.
6. I find that the retrospective amendment of Rule 6 of the said Rules by Section 73 of the Finance Act, 2010 was not raised in the case cited by the learned Advocate. Section 73 of Finance Act, 2010 is in respect of retrospective amendment of Rule 6 of CENVAT Credit Rules, 2004. Sub-section (2) of Section 73 provides an option to pay the amount of input credit along with interest attributable to the inputs used in or in relation to the manufacture of exempted goods within a period of six months from the date on which the Finance Bill 2010 received the assent of the President. In terms of sub-section (3) of Section 73, the Commissioner of Central Excise shall verify the correctness of the amount paid by the assessee. In the present case, the learned Advocate submitted that the appellant reversed the credit attributable to the inputs used in or in relation to manufacture of exempted goods, before issue of show cause notice. In my considered view, it is appropriate that the adjudicating authority should verify the reversal of credit as contended by learned Advocate as also permitted by the amendment of Rule 6 of the CENVAT Credit Rules, 2004 by Section 73 of the Finance Act, 2010 and to decide afresh in the light of the decision of the Tribunal referred above.
8. In view of the above discussion, both the orders are set aside and the appeals are allowed by way of remand to the adjudicating authority, with the above direction.
(Dictated and pronounced in open court) (P.K. Das) Judicial Member Rex 3