Custom, Excise & Service Tax Tribunal
M/S. Surya Industrial Corporation Ltd vs C.C.E., Meerut-I on 23 January, 2014
IN THE CUSTOMS, EXCISE & SERVICE TAX
APPELLATE TRIBUNAL
WEST BLOCK NO.2, R.K. PURAM, NEW DELHI 110 066
Date of Hearing 23.01.2014
For Approval &Signature :
Honble Mrs. Archana Wadhwa, Member (Judicial)
1.
Whether Press Reporter may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
No
2.
Whether it would be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
No
3.
Whether Lordships wish to see the fair copy of the order?
Seen
4.
Whether order is to be circulated to the Department Authorities?
Yes
Appeal No. E/509/2011 -EX[SM]
[Arising out of Order-in-Appeal No.259-CE/MRT-I/2010-11, dated 29.10.2010 passed by C.C.E.(Appeals), Meerut-I]
M/s. Surya Industrial Corporation Ltd. Appellants
Vs.
C.C.E., Meerut-I Respondent
Appearance Shri Rajesh Chhibber, Advocate - for the appellants Ms. Suchitra Sharma, DR - for the respondent CORAM: Honble Mrs. Archana Wadhwa, Member (Judicial) Final Order No.50270, dated 23.01.2014 Per Honble Mrs. Archana Wadhwa :
After hearing both the sides, I find that the appellants imported certain machineries during the period 1996-97. At that point of time, as per law, they could not take the CENVAT credit till the capital goods were installed in the factory. The same were not installed till the year 2005. In between, the appellants unit was taken up by a financial institution in the year 2002 and again come back to them subsequently in the year 2005. In as much as the law changed in the year 2005, i.e., the assessee could take the credit even without installing the capital goods, the appellants took the credit of duty paid on the said machineries.
2. Certain investigations were made and as per the Range Superintendent, who visited the appellants factory, the said capital goods were not still installed in the appellants factory and were not even identifiable. In the background of the above report, proceedings were initiated for denial of the credit as also for confirmation of interest and penalty. The order passed by the original adjudicating authority was upheld by the Commissioner (Appeals). Hence, the present appeal.
3. Ld. Advocate appearing for the appellants submits that the credit stands denied on the ground that the appellants never installed the capital goods in question or even received by the appellants or were not in their possession at the time of visit of the Superintendent. The contention of the Ld. Advocate is that the said machinery is still available with them and the Superintendent has given his report even without making enquiries from the appellants. If the Revenue still wants to verify, they are welcome to do so. However, he clarifies that the said capital goods have not been installed even till date, as the unit has not started functioning on account of financial crisis. He also fairly agrees that the credit so taken by them in their CENVAT credit accounts has not been utilised as also not capable of being utilised in as much as there is no liability on them to pay the excise duty on account of non-manufacturing activities. He clarifies that they have already reversed the credit in question and would be entitled to the same as and when they start their manufacturing activity. In any case, he submits that in as much the credit availed by them has not been used and in any case they were entitled to avail the credit, no interest is payable by them in terms of the decision of the Hon'ble High Court of Karnataka in the case of CCE&ST, Bangalore Vs. Bill Forge [2012 (26) S.T.R. 204 (Kar.)]. Similarly, he submits that this is not the case for imposition of penalty.
4. In as much as there is a basic dispute about the availability of the imported capital goods with the appellants and the lower authorities have relied upon the report of the Superintendent, which stands disputed by the appellants, I deem it fit to set aside the impugned order and remand the matter to the original adjudicating authority for verification of the fact of availability of the said imported machinery in the appellants factory. The appellants would be given an opportunity to establish so. If the machinery is available in the factory, they would be entitled to the credit of the same.
5. All other issues, as regards interest and penalty required to be decided as per the law declared in the case of CCE&ST, Bangalore Vs. Bangalore, Supra.
(Dictated and pronounced in the Open Court) (Archana Wadhwa) Member (Judicial) SSK -3-