Custom, Excise & Service Tax Tribunal
M/S. R.T. Paper Boards Ltd vs Cce, Rohtak on 25 March, 2008
CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, PRINCIPAL BENCH,
NEW DELHI, COURT NO.1
EXCISE STAY APPLICATION NO. 220 OF 2008
IN EXCISE APPEAL NO.188 OF 2008
[Arising out of order-in-appeal No.443/KKG/RTK//2007 dated 25.9.2007 passed by the Commissioner of Central Excise (Appeals), Delhi-III, Gurgaon]
Date of Hearing/Decision: 25.3.2008
Honble Mr. Justice S.N. Jha, President
Honble Mr. M. Veeraiyan, Member (Technical)
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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 Their Lordships wish to see the fair copy :
of the Order?
4. Whether Order is to be circulated to the Departmental :
authorities?
M/s. R.T. Paper Boards Ltd. Appellant
[Rep. by: Shri Ravi Raghavan, Advocate]
Versus
CCE, Rohtak Respondent
[Rep. Shri Vijay Chaudhary, Jt.CDR]
Coram: Honble Mr. Justice S.N. Jha, President
Honble Mr. M. Veeraiyan, Member (Technical)
O R D E R
Per M.Veeraiyan:
After hearing both sides for a while on the stay petition, we felt that the appeal itself could be finally decided and accordingly we waive pre-deposit of the dues as per the impugned order and proceed to hear the appeal.
2. Relevant facts in brief are as follows :-
(1) One M/s. Siddarth Paper Mills was taken over by one M/s. Rollatainers Ltd. with effect from 1.4.1990 and the same got merged with the present appellant with effect from 5.9.2002.
(2) During the period from 10.5.2005 to 8.10.2005, the appellant sold the plant and machinery as CKD parts/scrap metal totally for a price of Rs.99,79,997/- without payment of duty.
(3) The department held that as the appellant was in the Cenvat Scheme, removal of such CKD parts of machinery as scrap requires to pay duty in terms of rule 3(5A) of Cenvat Credit Rules, 2004, and accordingly confirmed a demand of Rs.16,28,736/- along with interest and imposed penalty of equal amount.
3. The learned advocate for the appellant submits that most of the capital goods which were sold as scrap metal were procured prior to 1994, when there was no cenvat on capital goods. According to the the appellant, the latest addition of capital goods was by way of import in the year 1995-96 and that they were not having the related documents. He submitted that the department has to first of all prove that in respect of capital goods removed as waste and scrap the appellant has availed cenvat credit before invoking the provisions of rule 3(5A) of the Cenvat Credit Rules. In support of his contentions, he also relied on the decision of the Tribunal in the case of K.M. Sugar Mills Ltd. Vs. CCE, Allahabad, reported in 2004(164) ELT 40 (Tri.-Del.).
4. The learned DR submits that the appellant admittedly was in the cenvat scheme and therefore it was presumed that they were availing cenvat credit both for raw materials and capital goods. When they are claiming the benefit by way exception to the provisions of rule 3(5A) of the Cenvat Credit Rules, it is their responsibility to produce the documents to show that they have not taken cenvat credit on these capital goods.
5. We have carefully considered the submissions and glanced through the voluminous records produced before us. We find the matter relates to period prior to 1995 and that the department has merely gone on the presumption that they ought to have availed cenvat credit on capital goods as well. The appellant has also taken a rigid stand without making efforts to produce the list of machinery taken over by the successor companies whenever there was a change in the ownership of the company. Some of the documents produced now have not been produced at earlier proceedings and hence the factual position has not been correctly appreciated at the level of the original authority and, therefore, we deemed proper to set aside the order and remand the matter for de novo consideration keeping all issues open. We direct the appellant to file written submissions along with evidence they want to rely on within two months from the date of receipt of this order. The original authority shall decide the matter expeditiously thereafter but within two months after expiry of time given for filing written submissions. He shall also give reasonable opportunity to the appellant before the matter is decided.
6. The appeal is allowed by way of remand on the above terms. Stay petition is also disposed of.
[Dictated and pronounced in the open Court] [Justice S.N. Jha] President [M. Veeraiyan] Member(Technical) nk