Custom, Excise & Service Tax Tribunal
M/S Markfed Sugar & Allied Industries vs Cce, Ludhiana on 30 April, 2013
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL West Block No. 2, R.K. Puram, New Delhi 110 066. Principal Bench, New Delhi COURT NO. III DATE OF HEARING : 30/04/2013. DATE OF DECISION : 30/04/2013. Excise Appeal No. 132, 719 of 2005 [Arising out of the Order-in-Appeal No. 635/CE/Appeal/LDH/2004 dated 30/11/2004 passed by The Commissioner (Appeals), Central Excise, Ludhiana.] For Approval and signature : Honble Ms. Archana Wadhwa, Member (Judicial) Honble Shri Rakesh Kumar, Member (Technical) 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 would 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 : Department Authorities? M/s Markfed Sugar & Allied Industries Appellant Versus CCE, Ludhiana Respondent
and vice-versa Appearance None for the appellant.
Shri Nagesh Pathak, Authorized Representative (DR) for the Respondent.
CORAM : Honble Ms. Archana Wadhwa, Member (Judicial) Honble Shri Rakesh Kumar, Member (Technical) Final Order No. 56304-56305/2013 Dated : 30/04/2013 Per. Archana Wadhwa :-
On matter being called, the appellant was unrepresented, we have accordingly heard learned DR in both the matters and have gone through the impugned order.
2. Vide his orders, the lower authorities have denied the benefit of Cenvat credit of Rs. 21,90,302/- availed by the assessee in respect of MS fabricated structure on the ground that the same have been used to support machinery and equipment and, as such, cannot be held to be admissible modvetable items. We find that the law on the said issue stands decided against the appellant by the Larger Bench of the Tribunal in the case of Vandana Global Ltd. vs. CCE, Raipur reported in 2010 (253) E.L.T. 440 (Tri. LB).
3. However, we find that the demand stand raised by way of issuance of a show cause notice dated 26/6/02 for the period February 2001 to April 2001. During the relevant period, there were decisions favourable to the assessees and law came to be settled against the assessees only by the Larger Bench in the case of Vandana Global Ltd. vs. CCE, Raipur (supra). It is well settled that when there are decisions in favour of the assessees and it is only subsequently the way issue is decided against the assessee no malafide can be attributed to them. Otherwise also, we note that such credit availed by the appellant was being reflected in their monthly returns as there is no allegation to the contrary. As such, where the demand for the period February 2001 to April 2001 having been raised by show cause notice dated 26/6/02 is barred by limitation. The same is accordingly set aside on this short ground.
4. As regards, the Revenues appeal, the same is against that part of the impugned order of Commissioner (Appeals) vide which he has reduced the penalty. In as much as we have set aside the impugned order of Commissioner (Appeals), Revenues appeal is to be rejected. We order accordingly.
(Dictated and pronounced in open court) (Archana Wadhwa) Member (Judicial) (Rakesh Kumar) Member (Technical) PK ??
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