Custom, Excise & Service Tax Tribunal
M/S. Novopan Industries Ltd vs Commissioner Of Central Excise, ... on 18 November, 2014
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH BANGALORE Final Order No. 22037-22038 / 2014 Application(s) Involved: E/Stay/25782/2013, E/Stay/25785/2013 in E/25586/2013-DB, E/25587/2013-DB Appeal(s) Involved: E/25586/2013-DB, E/25587/2013-DB [Arising out of Order-in-Appeal No.81/2012(H-III) CE dated 14/11/2012 & Order-in-Appeal No.140/2012 (H-I) CE dated 22/11/2012 passed by Commissioner of Customs, Central Excise and Service Tax (Appeals I & III), HYDERABAD.] M/s. Novopan Industries Ltd Balanagar Village, Shadnagar Mandal, HYDERABAD. AP Appellant(s) Versus Commissioner of Central Excise, Customs and Service Tax HYDERABAD-III Commissionerate OPP. L.B. STADIUM ROAD, BASHEERBAGH, HYDERABAD 500 004. ANDHRA PRADESH Respondent(s)
Appearance:
Mr. R. Raghavendra Rao, Consultant K. VIJAY KUMAR 101, MOON ROCK RESIDENCY, PLOT No. 205, KALYAN NAGAR PHASE-1, HYDERABAD 500 038.
For the Appellant Mr. N. Jagadsih, Superintendent (AR) For the Respondent CORAM:
HON'BLE SHRI B.S.V.MURTHY, TECHNICAL MEMBER HON'BLE SHRI S.K. MOHANTY, JUDICIAL MEMBER Date of Hearing: 18/11/2014 Date of Decision: 18/11/2014 Order Per : B.S.V.MURTHY Commissioner (A) had dismissed the appeal filed by the appellant on the ground that appellants failed to deposit 50% of the duty demanded. Appellant is engaged in the manufacture of melamine faced pre-laminated boards and plain particle boards. Appellants availed CENVAT credit of service tax paid on outward transportation services used for dispatch of finished goods and five show-cause notices were issued to the appellants proposing to deny and demanded CENVAT credit availed with interest. In the impugned order, CENVAT credit has been denied and demanded.
2. The learned counsel submitted the following:
* Rate quoted in purchase order is inclusive of freight. The freight charges are included in the assessable value and duty has been paid. * Sale is on FOR destination basis and freight charges are not collected separately. * Reliance is placed on the decision of the Honble High Court of Punjab and Haryana in the case of M/s. Ambuja Cements Ltd.: 2009 (236) E.L.T. 432 (P & H) held that credit is admissible as freight charges formed part of the value of goods and sales were on FOR destination basis. * The issue has also been clarified vide CBEC Circular No.97/6/2007-S.T., dated 23.8.2007. * After 2008 (after amendment of Rule 2(l) of CCR, 2004), the Honble Tribunal held that if freight charges are included in the value of goods, credit is admissible. Reliance is placed on the following decisions of the Tribunal. > M/s. New Allenberry Works vs. CCE, New Delhi: 2014-TIOL-724-CESTAT-Del. > Palco Metals Ltd. vs. CCE, Ahmedabad: 2012 (280) E.L.T. 299 (Tri.-Ahmd.) In view of the above submissions, he prays for remand of the matter to the Commissioner (A) to decide the appeal on merits.
3. On going through one of the sample invoices, we found that the transportation cost is included and the purchase order also clearly says that after acceptance of materials by the company only payments will be made. Prima facie, we find that appellants may have a case. Therefore, in our opinion, the Commissioner could have heard the appeal without insisting on any pre-deposit. It is also seen that even before the lower authorities sample invoices, purchase orders, etc., were not produced and therefore it was requested by the learned counsel that the matter may be remanded to the original adjudicating authority so that they can produce the evidence before the original authority which can be considered in detail and an order passed. Accordingly, the impugned order is set aside and the matter is remanded to the original adjudicating authority for fresh decision after considering all the submissions that may be made by the appellants and after observing principles of natural justice.
(Operative portion of the order has been pronounced in open court) S.K. MOHANTY JUDICIAL MEMBER B.S.V.MURTHY TECHNICAL MEMBER rv 3