Custom, Excise & Service Tax Tribunal
M/S Clariant Chemicals (India) Ltd vs Commissioner Of Central Excise, Raigad on 27 April, 2016
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT NO. IV Appeal No. E/1726/11 (Arising out of Order-in-Appeal No. US/271/RGD/2011 dated 21.9.2011 passed by the Commissioner of Central Excise (Appeals), Mumbai-II). For approval and signature: Honble Shri Raju, Member (Technical) ======================================================
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 : Yes 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?
====================================================== M/s Clariant Chemicals (India) Ltd.
Appellant Vs. Commissioner of Central Excise, Raigad Respondent Appearance:
Shri Mihir Mehta, Advocate for Appellant Shri V.K. Shastri, Assistant Commissioner (AR) for Respondent CORAM:
SHRI RAJU, MEMBER (TECHNICAL) Date of Hearing: 13.04.2016 Date of Decision: 27.04.2016 ORDER NO.
Per: Raju The appellant, Clariant Chemicals (India) Ltd., cleared certain old machinery and equipment as scrap without payment of any duty. In the show-cause notice. Revenue invoked sub-rule 4(c) of Rule 3 of Cenvat Credit Rules, 2004 for demanding duty. The appellant paid Rs.40,800/- out of total demand of Rs.1,71,360/-.
2. Learned Counsel for the appellant argued that the CENVAT Credit Rules are not applicable to them as in respect of most of the machinery they have not availed CENVAT Credit. He argued that in respect of machinery where they have taken CENVAT Credit, they have reversed the duty amounting to Rs.40,800/-. He argued that the impugned order of Commissioner (Appeals) presumes that they have taken CENVAT Credit on these machineries without any evidence. He relied on decision of the Tribunal in case of Larsen & Toubro Ltd. 2008 (228) ELT 294. He also relied on the decision of Hon'ble Supreme Court in the case f Grasim Industries Ltd. 2011 (273) ELT 10 (SC).
3. Learned AR relies on the impugned order. He relied on the various decisions of the Tribunal. However, in all the decisions cited by him, the issue regarding availment of CENVAT Credit was not in dispute.
4. I have gone through the rival submissions. I find that there is no evidence on record to show that the appellants have availed CENVAT Credit on any machinery which they have cleared as scrap. In such a situation, invocation of Cenvat Credit Rules for demand of reversal of credit is without any basis. The appellant have voluntarily reversed duty amounting to Rs.40,800/- in respect of item on which they admit to have taken credit. In view of the above, the impugned order is modified and demand and penalty in excess to Rs.40,800/- is set aside.
5. The appeal is partially allowed.
(Pronounced in Court on 27.04.2016) (Raju) Member (Technical) Sinha 3 Appeal No. E/1726/11