Custom, Excise & Service Tax Tribunal
Commissioner Of Central Excise And ... vs Brahmaputra Ispat Pvt. Ltd on 25 February, 2016
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE
TRIBUNAL, KOLKATA
EASTERN ZONAL BENCH: KOLKATA
Appeal No.E/70033/13
(Arising out of Order-in-Appeal No.37/DIB/CE(A)/Ghy/12 dated 12.11.2012 passed by the Commissioner Customs & Central Excise, (Appeals), Guwahati)
FOR APPROVAL AND SIGNATURE
HONBLE DR. D.M. MISRA, MEMBER(JUDICIAL)
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
Authorative report or not?
3. Whether Their Lordship wishes to see the fair copy
of the Order?
4. Whether Order is to be circulated to the Departmental
Authorities?
Commissioner of Central Excise and Service
Tax Guwahati
Applicant (s)/Appellant (s)
Vs.
Brahmaputra Ispat Pvt. Ltd.
Respondent (s)
Appearance:
Shri S.S.Chatterjee, Suptd.(AR) for the Appellant (s) Shri Devraj Sahu, Advocate for the Respondent (s) CORAM:
Honble Dr.D.M.Misra, Member(Judicial) Date of Hearing/Decision: 25.02.2016 Date of Pronouncement: 25.02.2016 ORDER No.FO/75224/2016 Per Dr. D.M.Misra
1. This is an Appeal filed by the Revenue against Order-in-Appeal No.37/DIB/CE(A)/Ghy/12 dated 12.11.2012.
2. Briefly stated the facts of the case are that the Respondent was engaged in the production of Iron and Steel Ingots falling under Chapter sub-heading No.7206.90 of CETA,1985. During the period 02.02.1998 to 31.05.1998 they had been discharging duty under the Compounded levy scheme in terms of Section 3A of Central Excise Act,1944 read with relevant rules notified under the said provision. A Demand Notice was issued to them alleging short payment of duty of Rs.5,61,668.00 during the said period. On adjudication, the demand was confirmed by the Adjudicating Authority and penalty of equal amount imposed under relevant rules with a direction for payment of interest also. Aggrieved by the said Order, the respondent filed an Appeal before the Ld. Commissioner (Appeals) who has allowed the Appeal and directed of refund of Rs.20,572.00 to the Appellant. Aggrieved by the said Order, the Revenue is an Appeal.
3. Ld. A.R. for the Revenue reiterating the grounds of Appeal has submitted that the Ld. Commissioner (Appeals) has erroneously extended the benefit of abatement without verification of the relevant records of closure and recommencement of production during the said period. Secondly, he has submitted that even though the Commissioner (Appeals) has recorded the findings that the Appellant is required to pay interest of Rs.20,572.00, but simultaneously directed refund of Rs.20,572.00, which is erroneous.
4. Ld. Advocate for the Respondent submitted that after due verification of the intimation letters of cessation of production and its commencement during the relevant period communicated to the Department from time to time, the Ld. Commissioner (Appeal) has decided the issue in their favour. He has placed copies of letters of duly acknowledged by the department. Further, he has submitted that against the duty liability of Rs.3,31,928.00, they have paid total amount of Rs.3,52,500.00 and placed relevant challans which were also considered by the Appellate Authority and the amount of Rs.20,572.00 was directed to be refunded. However, he has fairly accepted that the said amount of refund is adjustable against their liability towards interest.
5. Heard both sides and perused the records. I find that the Revenue has come up with the Appeal against the impugned Order on the ground that the abatement allowed by the Ld. Commissioner (Appeals) is not supported by proper evidence, in as much as, the letters of intimation of closures and commencement of production had not been duly acknowledged by the Department. I do not find merit in the said ground after going through the copies of such letters which were produced before the Ld. Commissioner (Appeals) and also produced before this forum. Therefore, there cannot be any doubt that the Respondent is otherwise eligible to the abatement. On the second issue, I find that the Respondent has produced relevant TR-6 Challan before the Ld. Commissioner(Appeals) in support of the payment of Rs.3,52,500.00 against the liability of Rs.3,31,928.00, leaving excess payment of Rs.20,572.00, which is refundable to them. However, I also find that the Ld. Commissioner (Appeals) in the Order has observed that the Respondents are required to pay interest of Rs.20,752.00 against the delayed payment of duty of Rs.2,00,000.00 during the said period, but erroneously directed refund Rs.20,572.00. The Ld. Advocate for the respondent has fairly accepted that he has no evidence to establish that the interest liability of Rs.20,572.00 was also paid by them during the course of proceedings before the authorities. In these circumstances, the Order directing refund of Rs.20,572.00 is thus becomes erroneous and liable to be set aside. Consequently, the Revenues Appeal is partly allowed to the extent of direction for refund Rs.20,572.00 and the impugned order of the Ld. Commissioner (Appeals) is modified accordingly. The Appeal filed by the Revenue is partly allowed.
(Operative part of the Order was pronounced in the open court) S/d.
(Dr. D.M.MISRA) MEMBER (JUDICIAL) SS 1