Custom, Excise & Service Tax Tribunal
Dalmia Cement (Bharat ) Ltd vs C.C.E.& S. Tax, New Delhi on 23 November, 2016
CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL, West Block No.2, R.K.Puram, New Delhi COURT-I Date of hearing/decision: 23.11.2016 Central Excise Appeal No.31 of 2011 Arising out of the order-in-original No.13/Commissioner/2010 dated 30.9.2010 passed by the Commissioner, Central Excise & Service Tax, New Delhi. Dalmia Cement (Bharat ) Ltd. .. Appellant Vs. C.C.E.& S. Tax, New Delhi Respondent
Appearance:
Present Shri Rahul Tangri, Advocate for the appellant Present Shri Yogesh Agarwal, A.R. for the respondent Coram: Honble Mr. Justice (Dr.) Satish Chandra, President Honble Mr. Ashok K.Arya, Technical Member Final Order No.55257/2016 Per Mr. Justice (Dr.) Satish Chandra:
The present appeal has been filed by the appellant against the order No.13/2010 passed by the Commissioner on 30.9.2010. The period in dispute is from December 2008 to February 2010.
2. The brief facts are that the appellant is engaged in the manufacture, inter alia, of cement and clinker falling under Chapter 25 of the First Schedule to the Central Excise Tariff Act, 1985. The appellant got itself registered under the Excise Act w.e.f. 14.1.2008. The appellant set up its plant at Tamaraikulam village in Tamil Nadu in the year 2008 only. Thus, it procured huge quantum of cement, TMT steel bars, MS plates, angles, MS channels, beams, joist, structural steel etc. for the construction of various facilities and installations such as production facility, facility for storage, handling and conveying of raw materials, finished products etc.
2. The appellant-assessee has claimed cenvat credit on the material used in the formation of capital goods. The details of the materials are like MS angle, flat etc. The assessee has claimed cenvat credit which was disallowed. Being aggrieved, the appellant has filed present appeal.
3. With this background, we heard both the parties and perused the material available on record, from which it appears that the issue has come up before Tribunal in the case of Singhal Enterprises Pvt. Ltd. 2016 TIOL 2451 CESTA DEL, where the Tribunal vide its order dated 12.8.2016 has allowed the claim of the assessee. As the Rule 2(k) of the Cenvat Credit Rules was amended with effect from 7.7.2009, so the claim of the assessee in the case of Singhal Enterprises Pvt. Ltd. was allowed prior to 7.7.2009.
4. But after the period 7.7.2009, when the amendment was made, the claim of the assessee was examined as per the ratio laid down by the Honble Supreme Court in the case of Rajasthan Spinning & Weaving Mills Ltd. 2010 - TIOL 51 SC- CX and the matter was restored to the adjudicating authority to examine the issue afresh.
5. Hence, by following our earlier decision (supra), we set aside impugned order and restore the matter to the adjudicating authority to decide the issue de novo in the light of above discussion but by providing an opportunity of being heard to the appellant. Additional evidence may be admitted as per law.
6. In the result, the appeal is allowed by way of remand.
(Justice Dr. Satish Chandra) President ( Ashok K.Arya) Technical Member scd/ Appeal No.E/31/2011 1