Custom, Excise & Service Tax Tribunal
Cce Aurangabad vs Laxmi Agni Components & Forgings Pvt. ... on 5 May, 2014
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, WEST ZONAL BENCH AT MUMBAI
COURT NO. II
APPEAL NO. E/3170/06 Mum
E/CO-95/07
(Arising out of Order-in-Appeal No. RKR (130) 135/2006 dated 29.08.2006 passed by the Commissioner of Central Excise (Appeals), Aurangabad)
For approval and signature:
Honble Shri Ashok Jindal, Member (Judicial)
1. Whether Press Reporters may be allowed to see : No
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 : Yes
of the Order?
4. Whether Order is to be circulated to the Departmental : Yes
authorities?
CCE Aurangabad
:
Appellant
Versus
Laxmi Agni Components & Forgings Pvt. Ltd.
Respondent
Appearance Shri V.C. Khole, Jt. Commissioner (A.R.) For appellants Shri Prashant Patankar, Consultant For Respondents CORAM:
Shri Ashok Jindal, Member (Judicial) Date of Hearing : 05.05.2014 Date of Decision : 05.05.2014 ORDER NO.
Per Ashok Jindal The Revenue is in appeal against the impugned order. The respondent has also filed a Cross Objection to the appeal filed by the Revenue.
2. Brief facts of the case are that an investigation was conducted at the premise of the respondent on 15.03.2004 and noticed that the respondent has received certain capital goods which were not available in their factory. It was alleged that the capital goods have been cleared without payment of duty therefore, the appellants are required to pay duty on these capital goods. It was also noticed that the respondent has not taken CENVAT credit on these capital goods and they have taken the CENVAT credit later-on. It was held that when these capital goods were not available in their factory the appellants are not entitled for the credit. Proceedings were initiated and as per the adjudication order, demand of duty for the clearance of such capital goods along with interest and penalty were confirmed and the CENVAT credit taken later-on after the clearance of the capital goods was denied. The said order was challenged by the respondent before the learned Commissioner (Appeals) who after examining the issue set aside the adjudication order. Aggrieved by the said order, the Revenue is before me.
3. Heard both the sides.
4. The learned A.R. submits that in this case the respondent cleared the goods as such without payment of duty therefore, they are required to pay duty and also required to be penalized under Section 11AC of the Act.
5. On the other hand, the learned Consultant for the respondent supported the impugned order.
6. Considered the submissions made by both the sides.
7. In this case, it is an admitted fact that at the time of procurement of capital goods the respondent has not taken the CENVAT credit at all. Therefore, as per the Rule 35 of CENVAT Credit Rules, 2004 an assessee is required to reverse the CENVAT credit taken on clearance of the input/capital goods as such. Admittedly, in this case when the respondent has not taken CENVAT credit therefore, they are not required to reverse any credit on these capital goods. In this set of facts, issuance of show-cause notice was not required at all. Therefore, all the proceedings initiated in the show-cause notice are set aside. In these circumstances, I do not find any infirmity with the impugned order and the same is upheld. The appeal filed by the Revenue is dismissed. Cross Objection filed by the respondent is also disposed of in the above terms.
(Dictated in Court) (Ashok Jindal) Member (Judicial) nsk ??
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