Custom, Excise & Service Tax Tribunal
M/S Sps Steels Rolling Mills Ltd vs Commr. Of Central Excise, Bolpur on 23 March, 2010
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, EAST REGIONAL BENCH : KOLKATA
Ex. Appeal No.648/09
Arising out of Order-in-Appeal No.37/BOL/2009 dated 28.8.2009 passed by Commr. (Appeals), Central Excise, Kol.IV
SHRI S. S. KANG, HONBLE VICE PRESIDENT
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 His Lordship wishes to see the fair copy
of the Order? :
4. Whether Order is to be circulated to the Departmental
Authorities? :
M/s SPS Steels Rolling Mills Ltd.
APPELLANT(S)
VERSUS
Commr. of Central Excise, Bolpur
RESPONDENT (S)
APPEARANCE Shri D. K. Dutta, Consultant for the Appellant (s) Shri M. B. Bal, JDR for the Department CORAM:
SHRI S. S. KANG, HONBLE VICE PRESIDENT Date of hearing & decision : 23.03.2010 ORDER NO.. Per Shri S. S. Kang :
Heard both sides. The appellant filed this appeal against the impugned order whereby a penalty under section 11AC of the Central Excise Act was imposed.
2. Brief facts of the case are that the appellant availed input credit in respect of service tax paid on Trading Activities and Stock Transfer Agent Services. As the same are not input services, hence, the Revenue pointed out the same and the appellant reversed the credit along with interest on 28.5.2007. Thereafter, the show-cause notice was issued on 11.7.2008 for appropriation of the amount reversed and the imposition of penalty under Section 11AC of the Act. The adjudicating authority in view of the fact that the amount has already been reversed, had not imposed any penalty under Section 11AC of the Act. The Revenue filed an appeal before the Commissioner (Appeals) for imposition of penalty. The appellant also filed Cross Objection before the Commissioner (Appeals) challenging the demand as time barred. The Commissioner (Appeals) in the impugned order held that the appellants themselves in their Cross Objection accepted the irregularities and imposed penalty of the equal amount of demand.
3. The contention of the appellants that the issue of limitation which was specifically raised in the Cross Objection had not taken into consideration while passing the impugned order. Therefore, the matter requires reconsideration. The contention is also that the credit was availed for the period November, 2005 to February, 2007 and July, 2006 to March, 2007 which was duly reflected in the statutory records and the appellants were regularly filed the returns with the Revenue showing taking and utilizing of the credit, hence, the allegation of suppression with intent to evade payment of duty is not sustainable.
4. The ld. JDR appearing for the Revenue reiterates the findings of the impugned order and the Revenue held that it is only when the Revenue pointed out the fact regarding taking of credit which is not admissible, the appellants reversed the same. In the circumstances, the contention is that the penalty was rightly imposed.
5. I find that the Revenue filed the appeal against the adjudication order and the appellants filed Cross Objection challenging the show-cause notice on the ground of limitation. The issue of time bar is not taken into consideration while passing the impugned order. In the circumstances, the impugned order is set aside and the matter is remanded to the Commissioner (Appeals) to decide afresh after affording an opportunity of hearing to the appellant. The appeal is allowed by way of remand.
(Dictated and pronounced in the open Court) Sd/ (S. S. KANG) VICE PRESIDENT mm 9 Ex.Appeal No.648/09