Custom, Excise & Service Tax Tribunal
Cce, Meerut-I vs M/S.Upper Doab Sugar Mills on 13 July, 2011
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL,
WEST BLOCK NO.II, R.K. PURAM, NEW DELHI-110066.
SINGLE MEMBER BENCH
Court-IV
Excise Appeal No.2774 of 2009-SM
Date of Hearing/Decision: 13.07.2011
(Arsing out of Order-in-Appeal No.74-75-CE/MRT-I/2009 dated 30.06.2009 passed by the CCE(A), Meerut-I)
For approval and signature:
Honble Mr.Ashok Jindal, Member (Judicial)
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?
CCE, Meerut-I Appellant
Vs.
M/s.Upper Doab Sugar Mills Respondent
Present for the Appellant: Shri A.K.Khanna, SDR
Present for the Respondent: Shri S.C.Kamra & Sh.G.K.Mahajan,
Advocates
Coram: Honble Mr.Ashok Jindal, Member (Judicial)
ORDER NO._______________
PER: ASHOK JINDAL
The Revenue is in appeal against the impugned order wherein the mandatory penalty under Section 11AC of Central Excise Act, 1944 was dropped by the lower appellate authority on the ground that there is issue of interpretation whether the assessee is entitled for credit on welding electrode which are being used for repair and maintenance of plant an machinery or not.
2. Learned SDR submitted that the issue is whether the credit on welding electrodes which are being used for repair and maintenance of plant and machinery are entitled for credit or not is pending before the Apex Court in the case of Ramala Sahkari Chini Mills Ltd. vs. CCE, Meerut-I reported in 2010 (260) ELT 321. Therefore, the impugned is to be set aside.
3. On the other hand, learned Advocate for the respondents submitted that in the impugned order the Commissioner (Appeals) has confirmed the demand by denying the credit on welding electrodes used for repair and maintenance of plant and machinery was challenged before this Tribunal and this Tribunal vide order No.255-256/2011-SM(Br) dated 27.04.2011 has held that the assessee is entitled for credit on the welding electrodes which are being used for repair and maintenance of the plant and machinery. As no duty is payable by the respondents, therefore, the question of penalty does not arise and this appeal shall be merged with the order of this Tribunal cited hereinabove.
4. Heard both sides and considered the submissions made by them.
5. On careful consideration of the submissions made by learned DR, I find that the Revenue has challenged in this appeal for imposing penalty under Section 11AC ibid. The Commissioner (Appeals) has dropped the penalty on the ground that there is issue of interpretation whether the assessee is entitled for credit on welding electrode which are being used for repair and maintenance of plant an machinery or not. Therefore, the penalty is not imposable in the absence of ingredients of Section 11AC ibid. Learned DR himself has admitted that in the cited decision in the case of Ramala Sahkari Chini Mills Ltd., the issue is still in controversy, therefore, the ingredients of Section 11AC are absent in the facts and circumstances of the present case. Therefore, the mandatory penalty cannot be imposed against the respondents. Moreover, the impugned order confirming the duty has already been set aside by this Tribunal, therefore, the question of imposition of penalty does not arise.
6. In view above observations, I do not find any merits in the Revenues appeal. Therefore, the appeal is dismissed.
(ASHOK JINDAL) MEMBER (JUDICIAL) mk 6 4