Custom, Excise & Service Tax Tribunal
Cce & St, Raipur vs M/S.Godawari Power And Ispat Ltd on 4 May, 2016
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, NEW DELHI, PRINCIPAL BENCH NEW DELHI
Date of Hearing/Decision:4.05.2016
Excise Appeal No.E/50335/2016-EX(SM)
[Arising out of Order-in-Appeal No.BHO-EXCUS-002-APP-281-15-16 dated 22.12.2015 passed by the Commissioner of Customs (Appeals), Central Excise & Service Tax, Raipur]
For Approval and Signature:
Honble Shri B. Ravichandran, Member (Technical)
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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?
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 Lordships wish to see the fair copy of the Order?
4
Whether Order is to be circulated to the Departmental authorities?
CCE & ST, Raipur Appellants
Vs.
M/s.Godawari Power and Ispat Ltd. Respondent
Appearance:
Rep. by Shri G.R. Singh, AR for the appellant. Rep. by Shri Krishan Mohan Menon, Advocate for the respondent. Coram: Honble Shri B. Ravichandran, Member (Technical) Final Order No.51744/2016 /4.5.2016 Per B. Ravichandran:
The appeal by the Revenue is against order dated 22.12.2015 of Commissioner (Appeals), Raipur.
2. The brief facts of the case are that the respondent engaged in the manufacture of Sponge Iron, H.B. Wire, Ferro Alloys, etc., are liable to central excise duty. They were also availing credit on various inputs and capital goods in terms of Cenvat Credit Rules, 2004. Proceedings were initiated against them for demand and recovery of cenvat credit of Rs.32,63,670/- availed by them on various M.S. Items like beams, angles, channels, flats, plates and rounds, etc. The Original Authority vide his order dated 31.10.2014 denied the credit and imposed equal amount of penalty. On appeal, the Commissioner (Appeals) vide the impugned order substantially allowed the respondents appeal except for an amount of Rs.61,612/- held to be ineligible to the respondent. Aggrieved by this order, the Revenue is in appeal.
3. Ld. AR elaborated on grounds of appeal which basically challenges the impugned order only on the ground that it was passed in violation of Rule 5 of Central Excise (Appeals) Rules, 2001, which bars the appellant from producing additional evidences before the Commissioner (Appeals). It is the case of the Department that drawings, designs and various detailed supporting charts as per Chartered Engineers certificate were produced before the Appellate authority and not before the Original Authority. The impugned order has not been challenged on merits.
4. Ld. Counsel appearing for the respondent submitted that as can be seen from the original order they have produced drawing layout, deployment of material handling system and Chartered Engineers Certificate about the usage of various items on which credit has been availed by them. Ld. Commissioner (Appeals) has examined these evidences along with supporting photographs. The details of production/clearances of various items as mentioned in ER-1 Returns were also examined. The supporting chart submitted along with the Chartered Engineers certificate has been summarized and reproduced in the impugned order.
5. Specific reference has been made by the Revenue regarding certain reference nos. not tallying with that of originally examined by the Original Adjudicating Authority. Without going into the correctness of such claim and the implication of such assertion, it is an admitted fact that the usage of various items even in different types of fabrication and manufacture has not been questioned with any amount of corroboration by the Revenue to controvert the submissions made by the respondent before the lower authorities. The Original Authority as well as in the grounds of appeal, observation has been made regarding the Chartered Engineers certificate being not quantitatively validated. Though it is not clear as to the nature of such validation, it would appear that the quantity of steel items used in a particular item of structure/equipment is alleged to have been higher or lower, considering the nature and size of the machine.
6. Regarding the impugned order having been passed in violation of Rule 5 of the Appeal Rules, I find that the grounds of appeal is rather vague, without mentioning, which are all additional evidences, which will be barred under the said rule. Certain discrepancies between the drawings/chart as presented before the Original Authority which were also produced before the Appellate Authority were mentioned as the reason for alleging the said violation of Rule 5. The Commissioner (Appeals) is well within his right to seek clarification to explain any evidences submitted before him, before appreciating the said evidence for a finding. Seeking additional information or clarification on evidences on record to facilitate the proper finding cannot be apparently barred by the above mentioned rule. There is also no allegation that the new set of evidences have been submitted by the respondent which came into existence after the said case was decided by the Original Authority. I find no substantial ground in the appeal by the Revenue when there is no challenge on merit. A perusal of the impugned order to examine the merit reveals that the factual usage of various items have been examined by the Commissioner (Appeals) and he was guided by various decided cases including the application of user test as laid down by the Honble Supreme Court in Rajasthan Spinning and Weaving Mills Ltd. 2010 (255) ELT 481 (SC) and in General Mills 2001 (132) ELT 3 (SC). The eligibility of the credit has been decided by the lower authority on such merits.
7. Considering the above discussion and analysis , I find no merit in the present appeal by the Revenue. Accordingly, the same is dismissed.
[ order dictated and pronounced in open court] ( B. Ravichandran ) Member (Technical) Ckp.
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