Custom, Excise & Service Tax Tribunal
Cce, Rohtak vs M/S. Royal Aluminium Co. Pvt. Ltd on 2 April, 2014
IN THE CUSTOMS, EXCISE AND SERVICE TAX
APPELLATE TRIBUNAL, NEW DELHI
COURT NO. III
Excise Appeal No. 2257/2007-EX(SM)
[Arising out of Order-In-Appeal No. 293-294/SSS.RTK/2007 dated 18.05.2007 passed by CCE, Rohtak]
For approval and signature:
Honble Ms. Archana Wadhwa, Judicial Member
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Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
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Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
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Whether Their Lordships wish to see the fair copy of the Order?
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Whether Order is to be circulated to the Departmental authorities?
CCE, Rohtak Appellant
Vs.
M/s. Royal Aluminium Co. Pvt. Ltd. Respondents
Coram: Honble Ms. Archana Wadhwa, Judicial Member Appearance:
Shri M.S.Negi, DR for the Appellant None for the Respondent Date of Hearing: 02.04.2014 FO ORDER NO._51410/2014_ Per Ms. Archana Wadhwa:
Being aggrieved with the impugned order passed by Commissioner (Appeals) revenue has filed the present appeal. I have heard Shri M.S.Negi, learned DR appearing for the revenue. Nobody appeared for the respondent.
2. As per facts on record the respondent factory was visited by the Central Excise Officers on 21.10.2004, who found shortages of 4037 Kg. of aluminum Sections involving duty of Rs. 54,683/-. The officers also found that the assessee has cleared Aluminium Wastage without payment of duty amounting to Rs. 3,020/- and have also availed Cenvat credit of Rs. 4,37,973/- on imported Aluminium scrap wastage, whereas the scrap was procured by them from the local kabaries. Further the dispute relates in respect of Cenvat credit of Rs. 12,72,782/- availed on imported aluminum scrap under the Bills of Entries inasmuch as duty was paid not in cash but was deposited in the DEPB.
4. Proceedings were initiated against them resulted in confirmation of demands. However an appeal Commissioner (Appeals) allowed the appeal, except in short found goods or aluminum wastage, by observing as under:-
7. I find that the other allegation that the imported aluminium scrap was substituted with the locally procured scrap by the Appellants could not be proved by the Department. I do not find any legal basis in the learned Joint commissioners findings that the impugned imported aluminium scrap was not received in the factory of if received the same was removed clandestinely. The allegation of the substitution of the imported scrap with Kabari scrap could have been proved had the Department drawn the samples of the impugned scrap. Neither any sample has been drawn nor the Department has given an answer to the simple question as to what could have been intention of the Appellants behind the alleged diversion of the impugned scrap. Accordingly in absence of any evidence with the Department on this account, I am bound to agree with the Appellants contention that the allegation regarding procurement of impugned scrap from Kabaris is vague and without any cogent evidence. The Appellants have correctly cited numerous judgments in support of their claim that such allegations are required to be proves by the Department. I hold that the Department has failed to prove the allegation of substitution of raw material.
8. I also hold that Cenvat credit of duty in respect of imported inputs on which duty has been debited through DEPB cannot be denied in as far so w.e.f. 28.1.04. Para 4.3.5 of the Foreign Trade Policy has been amended where under duty debited through DEPB has been made admissible for Cenvat credit or for drawback claim w.e.f. 28.1.04. In the present case the Cenvat Credit denied to the Appellants pertain to the period April 2004 onwards i.e. after the amendment of Para 4.3.5 of the Foreign Trade Policy.
5. On going through the above findings of Commissioner (Appeals), I find no justifiable reasons to interfere in the same in the absence of any evidences supporting the revenue allegations, Commissioner (Appeals) has rightly set aside the confirmation of demands against the assessee. Revenues appeal is accordingly rejected.
(Pronounce in the open Court) (Archana Wadhwa) Member (Judicial) Jyoti* ??
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