Custom, Excise & Service Tax Tribunal
Usv Ltd vs Commissioner Of Central Excise, ... on 21 October, 2011
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT No. I APPLICATION No. E/S/1840/10 APPEAL No. E/1702/10 (Arising out of Order-in-Appeal No. YDB/390/M-II/2010 dated 14.7.2010 passed by Commissioner of Central Excise (Appeals), Mumbai-II) For approval and signature: Honble Mr. S.S. Kang, Vice President ======================================================
1. Whether Press Reporters may be allowed to see : No 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 : Seen of the Order?
4. Whether Order is to be circulated to the Departmental : Yes authorities?
====================================================== USV Ltd. Appellant Vs. Commissioner of Central Excise, Mumbai-II Respondent Appearance: Shri Punit Gupta, Chartered Accountant, for appellant Shri A.K. Prabhakar, Superintendent (AR), for respondent CORAM: Honble Mr. S.S. Kang, Vice President Date of Hearing: 21.10.2011 Date of Decision: 21.10.2011 ORDER NO Per: S.S. Kang Heard both sides.
2. The applicant filed this application for waiver of pre-deposit of duty of Rs.1,71,429/-, interest and penalty. The demand is confirmed on the ground that the applicant was availing credit of duty paid on common inputs which are used in or in relation to the manufacture of final product which is cleared on payment of duty as well as at nil rate of duty. The applicant is liable to pay 10% of the price on exempted goods as per the provisions of Rule 6(3)(b) of the Cenvat Credit Rules.
3. The contention of the applicant is that from the very beginning the applicant was submitting that no credit has been availed in respect of duty paid inputs used in the manufactured of goods cleared at nil rate of duty. For the subsequent period the Assistant Commissioner vide order dated 30.6.2010 dropped the demand which was raised on the same ground. The Assistant Commissioner in the adjudication order specifically held that no credit has been availed in respect of the inputs used in the manufacture of exempted goods. The contention is that in the reply to show-cause notice as well as before the authorities below, this plea was specifically taken and this has not been taken into consideration, therefore the demand is not sustainable.
4. The Revenue submitted that the applicant failed to produce any evidence in support of their claim. The Commissioner (Appeals) in the impugned order specifically held that the applicant has not provided any data in respect of the inputs meant for use in the manufacture of exempted goods. In absence of such evidence, the demand is rightly made.
5. I find that the case of the applicant is that no credit in respect of the inputs used in the manufacture of exempted goods is availed. In the subsequent proceedings, the adjudicating authority vide order dated 30.6.2010 dropped the demand which was raised on the same grounds by noticing the fact that input credit has not been availed in respect of the inputs used in the manufacture of exempted goods. From the very beginning also, the applicant is pleading that no credit has been availed in respect of the duty paid on inputs which are used in the manufacture of exempted goods. This fact requires verification, hence the impugned order is set aside after waiving pre-deposit of duty, interest and penalty and the matter is remanded to the adjudicating authority to decide afresh after affording an opportunity of hearing to the appellant. The stay petition is allowed and the appeal is disposed of by way of remand.
(Dictated in Court) (S.S. Kang) Vice President tvu 1 3