Custom, Excise & Service Tax Tribunal
M/S. Ojaswi Marble & Granite Pvt. Ltd vs Cce, Bhopal on 23 September, 2009
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL, West Block No. 2, R.K. Puram, NEW DELHI COURT No. III CENTRAL EXCISE APPEAL NO. 2663 of 2009-SM [Arising out of Order-in-Appeal No. 44-CE/BPL/06 dated 5.72007 passed by the Commissioner (Appeals), Central Excise, Bhopal] Dated of hearing/decision: 23rd September, 2009 For approval and signature: Honble Mr. P.K. Das, 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 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 Departmental authorities? M/s. Ojaswi Marble & Granite Pvt. Ltd., Appellants Vs. CCE, Bhopal Respondent
Appearance:
Shri Kamlesh Sharma, Executive of the appellants; Shri S.R. Meena, SDR for the Revenue Coram:
Honble Mr. P.K. Das, Member (Judicial), FINAL ORDER NO._________________ dated __________ Per P.K. Das:
Heard both sides and perused the records.
2. The appellants are engaged in the manufacture of Marble slabs and Marble tiles falling under heading 2504 of Central Excise Tariff Act, 1985. It has been alleged that the appellants failed to pay an amount equivalent to the Cenvat credit allowed to them in respect of inputs lying in stock, in process or contained in the final product lying in stock as on 23.10.2003, when the option of exemption from whole of the duty was exercised by them on the final product as per the decision of the Honble Supreme Court in the case of Aman Marbles vs. CCE, Jaipur, reported in 2003 (58) RLT 595 (SC). The original authority confirmed the demand of Rs. 56,756/- against recovery of inputs contained in final product and input lying in stock as on 23.10.2003 and appropriated the said amount as deposited by them. He restrained from imposition of penalty or charging of interest since the goods were exempted from payment of duty. Revenue filed appeal before the Commissioner (Appeals) for imposition of penalty and interest. Commissioner (Appeals) allowed the appeal of the Revenue insofar as demand of interest.
3. After hearing both sides and on perusal of the records, I find that the issue involved in this case is, as to whether the appellants are liable to pay interest on the credit in respect of inputs lying in stock as on 23.10.2003, when they opted exemption from whole of duty. Larger Bench of the Tribunal in the case of H.M.T. vs. Commissioner of Central Excise, Panchkula 2008 (232) ELT 217 (Tri.-LB) held that there is no requirement to reverse credit on finalproduct becoming exempt subsequently and such credit is not recoverable. It appears that notification No. 10/2007-CE(NT) dated 1.3.2007 inserted Rule 11(3) of Cenvat Credit Rules, 2004, a specific provision for reversal of credit. The period of dispute in the present case is 11/23.10.2003. In any event, in the present case the appellant is not disputing the payment of duty. In my view, when credit is not liable to be reversed, question of recovery of interest does not arise.
4. In view of the above discussion, the order of Commissioner (Appeals) is set aside and the order of the Adjudicating authority is restored. Appeal is allowed.
(Dictated & pronounced in the Open Court.) (P.K. DAS) MEMBER (JUDICIAL) RK