Custom, Excise & Service Tax Tribunal
M/S. Sterlite Industries India Ltd vs Cce, Madurai on 27 March, 2014
IN THE CUSTOMS, EXCISE & SERVICE TAX
APPELLATE TRIBUNAL
SOUTH ZONAL BENCH, CHENNAI
Appeal No. E/524/2008
(Arising out of Order-in-Appeal No.63/2008 dated 6.10.2008 passed by the Commissioner of Central Excise (Appeals), Madurai)
For approval and signature:
Honble Shri P.K. Das, Judicial Member
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 the Members wish to see the fair copy of the Order?
4. Whether Order is to be circulated to the Departmental authorities?
M/s. Sterlite Industries India Ltd. Appellant
Vs.
CCE, Madurai Respondent
Appearance Shri R. Srinivasan, Consultant, for the Appellant Shri P. Arul, Superintendent (AR) for the Respondent CORAM Honble Shri P.K. Das, Judicial Member Date of Hearing: 27.03.2014 Date of Decision: 27.03.2014 Final Order No. 40238/2014 The relevant facts of the case, in brief, are that the appellant is engaged in the manufacture of Copper Anode, Sulphuric Acid, Phosphoric Acid falling under Chapter Headings 7402, 2807 and 2809 respectively of the CETA, 1985. They are availing CENVAT credit on inputs, capital goods and input service. In the present appeal, the issue involved is whether the CENVAT credit relatable to samples taken for testing within the factory is liable to be reversed. The adjudicating authority disallowed CENVAT credit of Rs.8,501/- wrongly taken towards removal of sample on inputs for the purpose of testing during the period from March 2005 to December 2005 along with interest and also imposed penalty of equal amount. Commissioner (Appeals) upheld the adjudication order.
2. The learned counsel submits that the issue is a recurring nature. He submits that the tested samples of copper concentrate, after testing, fed into the primary smelter and therefore the allegation of the Department that the test samples were not used in the manufacture is not sustainable. He fairly submits that earlier they were not maintaining proper register of the samples and the Tribunal, in their own case for the earlier period, disallowed the credit as reported in 2006 (197) ELT 70. He submits that for the periods prior to this present appeal, the Assistant Commissioner of Central Excise dropped the proceedings vide adjudication order dated 30.10.2007 and 27.11.2007. In view of that the matter may be re-examined by the adjudicating authority on the basis of register.
3. On the other hand, the learned AR on behalf of Revenue submits that the issue has already been decided by the Tribunal in the appellants own as referred supra. He submits that the appellant had not produced any register before the lower authorities and the denial of credit is justified. He further submits that the amount involved being meagre, the appeal may be dismissed under Section 35B(1) of the Central Excise Act, 1944.
4. After hearing both sides and on perusal of the records, I find that the issue has a recurring effect and periodical show-cause notices were issued by the Department from time to time. It is seen that the Assistant Commissioner of Central Excise earlier dropped the demand vide order dated 30.10.2007 and 27.11.2007. In view of that, I take up the matter for decision.
5. The Tribunal, in the appellants own case, noted the appellants stand that the tested samples of copper concentrate were ultimately fed into the primary smelter but the plea was rejected as it was not supported by any documentary evidence. The Assistant Commissioner of Central Excise for the earlier period vide order dated 27.11.2007 dropped the demand after examining the report of the Superintendent. It is seen from the adjudication order that the appellant produced the copies of sample register instead of original documents. It was observed by the adjudicating authority that the register was a prepared one and the appellant had not convinced the adjudicating authority as to its genuineness.
6. In my considered view, the appellant should be given a reasonable opportunity to produce the original register before the adjudicating authority. It is also noted from the earlier adjudication order that the Superintendent of Central Excise verified the register and the demand was dropped on the basis of the verification report of the Superintendent. So, the adjudicating authority should proceed on the basis of the verification report of the Superintendent as it was done for the earlier adjudication order. Accordingly, the impugned order is set aside and the appeal is allowed by way of remand to the adjudicating authority for fresh decision. Needless to say that the appellant shall be given a reasonable opportunity of hearing before passing order. The appeal is allowed by way of remand.
(Dictated and pronounced in open court) (P.K. Das) Judicial Member Rex 4