Custom, Excise & Service Tax Tribunal
The Commissioner vs M/S Trimex Sands Pvt.Ltd on 31 March, 2016
CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL REGIONAL BENCH AT HYDERABAD Bench Single Member Bench Court I Appeal No.E/22965/2014 with E/CO/20418/2015 (Arising out of Order-in-Appeal No.19/2014(V-I)CE, dated 16-06-2014 passed by Commissioner of C.CE&ST(Appeals) Visakhapatnam) For approval and signature: Honble Ms. Sulekha Beevi, C.S. 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 Lordship wish to see the fair copy of the Order? 4. Whether Order is to be circulated to the Departmental authorities? The Commissioner. C.C.E&ST, Visakhapatnam-I ..Appellant(s) Vs. M/s Trimex Sands Pvt.Ltd. Srikakulam District. ..Respondent(s)
Appearance Shri V.K.Shastri, AR for the Appellant Shri Rajaram. R, Chartered Accountant & Shri Satish Sarda, Advocate for the Respondent Coram:
Honble Ms. Sulekha Beevi, Member(Judicial) Date of Hearing : 31/03/2016 Date of decision: 31/03/2016 FINAL ORDER No._______________________ [Order per: Sulekha Beevi, C.S.]
1. The above appeal is filed by Revenue challenging the order of Commissioner(Appeals) which set aside the penalty imposed under Rule 15(2) of Cenvat Credit Rules.
2. The respondent is engaged in manufacture of Rutile Concentrate, Ileminite Concentrate, Zircon Concentrate, garnet Concentrate and Silimanite concentrate. They are availing the facility of Cenvat credit of duty paid on inputs and capital goods. A show cause notice dated 03-01-2012 was issued to the respondent alleging irregular availment of credit on MS angles, Plates, Channels, Beams, Joists etc., as inputs. The respondent defended the notice contending that the explanation-2 to Rule 2(k) of Cenvat Credit Rules, 2004 which restricts Cenvat credit on cement, angles, channels, CTD etc. used for construction of factory shed, building or laying of foundation or making structures for support of capital goods was inserted in the said Rules only w.e.f. 07-07-2009 and that it is not applicable for the past period. That subject goods (MS items) were received in the factory of respondent in 2007-08 and that the credit has been rightly availed, as Rule 3 of the Cenvat Credit Rules, 2004 states that the manufacturer or producer of final products or a provider of taxable service shall be allowed to take Cenvat credit of duty paid on inputs or capital goods received in the factory of manufacture of final products or premises of the provider of output service. Further that the respondent had declared the availment of Cenvat credit in their ER-1 returns and Cenvat credit statements failed. That the extended period is not invokable as there is no suppression of facts on the part of respondent and that therefore, the demand is time barred.
3. After due process of law, the original authority allowed credit of Rs.7,05,513/- and disallowed credit of Rs.31,39,759/- Equal amount of penalty of Rs.31,39,759/- was imposed. The respondent carried the issue in appeal and vide the order impugned herein the Commissioner (Appeals) upheld the recovery of credit of Rs.31,39,759/-, but set aside the penalty imposed. Hence this appeal filed by Revenue.
4. The two grounds put forward in the present appeal is that (i) the Commissioner (Appeals) has no power to remand and (ii) that Commissioner (Appeals) has committed gross error in holding that the Order-in-Original did not establish any suppression of fact or fraud and that the penalty is to be set aside.
5. The first ground raised by revenue is without any basis. The Commissioner (Appeals) has not remanded the matter. The Commissioner (Appeals) upheld the recovery of credit availed and used for civil construction and machinery support structures and directed the jurisdictional Divisional Officer to quantify the demand. In fact there is no order of remand for adjudication of an issue passed by the Commissioner (Appeals). Therefore, the first ground raised by Revenue fails.
6. The second ground raised in the appeal is that the Commissioner (Appeals) has erred in setting aside the equal amount of penalty imposed. In the Order-in-Original the original authority has observed that the respondent availed credit by suppressing the fact of utilisation of items and details of manufacture. The credit was availed as inputs. It is not disputed that the respondent has disclosed the credit availed in ER-1 returns and the Cenvat credit statement filed by them. In fact, the show cause notice is issued on the basis of these ER-1 returns and furnishing of informations by the respondent. There is no case for revenue that any hidden information was received by inspection or search. So the conclusion of the Commissioner (Appeals) that the facts of the case do not pose a situated for imposing penalty, in my opinion, does not call for any interference. I do not find any merit in the appeal.
7. In the result, the appeal is dismissed.
(Pronounced in open court)
( SULEKHA BEEVI. C.S.)
MEMBER(JUDICIAL)
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