Custom, Excise & Service Tax Tribunal
Cce, Indore vs M/S Medilux Laboratories Pvt. Ltd on 7 May, 2010
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
NEW DELHI
COURT NO. II
Excise Appeal No. 1129 of 2008-SM
(Arising out of Order-in-Appeal No. IND-I/83/2008 dated 9.4.2008 passed by the Commissioner (Appeals), Customs & Central Excise, Indore)
CCE, Indore Appellant
Vs.
M/s Medilux Laboratories Pvt. Ltd. Respondent
Appearance:
Appeared for Appellant : Shri S. Gautam, SDR
Appeared for Respondent : Shri Ramesh Nair, Advocate
Date of Hearing: 7.5.2010
CORAM: HONBLE MR. D.N. PANDA, JUDICIAL MEMBER
Order No.dated.
Per D.N. Panda:
Revenue being aggrieved by the Appellate order holding that demand of Rs.1,98,,100/- was unsustainable for the claim of the Respondent in respect of Cenvat credit relating to the input allowable, came in appeal before Tribunal. Ld. DR Shri Gautam submits that when the inputs were not used, the Appellant cannot get Cenvat credit for which the demand of Rs.1,98,100/- arose. Therefore the impugned order is unsustainable.
2. Ld. Counsel Shri Ramesh Nair appearing for Respondent submits that the inputs were all along being used and were lying in the shape of WIP being processed, loss due to fire of WIP shall not call for demand. The Respondent is in second round of litigation before the Tribunal for consideration of its claim of admissibility of Cenvat credit of Rs.1,98,100/-. He submits that while the matter was before Tribunal on first round of litigation in terms of order dated 13.11.07, Tribunal required ld. Commissioner (Appeals) to examine the stage of the input because of the doubt arose on the basis of the surveyors report. Ld. Commissioner has examined the entire issue. There is nothing to make out a case against the Respondent.
3. Heard both sides and also perused the record.
4. In para-5 of the Appellate order, ld. Commissioner has settled the specific issue before him which arose out of the order of the Tribunal. He has a clear observation that the show cause notice itself stated that inputs were in the form of WIP for which the inputs were used in manufacture of finished goods. Finding that lack of scrutiny at early stage has only gave rise to the repetitive appeals, he allowed the claim of the Respondent. There is no evidence to contradict the finding of the ld. Appellate Authority about the stage of the input. In absence of any evidence to the contrary, the first Appellate order should sustain. Revenues appeal is accordingly dismissed.
(Dictated & pronounced in open Court) (D.N. PANDA) JUDICIAL MEMBER RM