Custom, Excise & Service Tax Tribunal
M/S. Kisan Sahkari Chinni Mills Ltd vs Cce, Allahabad on 9 August, 2010
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL, West Block No. 2, R.K. Puram, NEW DELHI COURT No. II E/STAY NO. 1139 OF 2010-SM IN AND CENTRAL EXCISE APPEAL NO. 1087 OF 2010-SM [Arising out of Order-in-Appeal No. 156-160/CE/APPL/ALLD/09 dated 27.11.2009 passed by the Commissioner (Appeals), Central Excise, Allahabad] M/s. Kisan Sahkari Chinni Mills Ltd., Appellant None Versus CCE, Allahabad Respondent
Reptd. by Shri Anil Khanna, DR Date of Hearing/decision: 9th August, 2010 Coram: Honble Shri D.N. Panda, Judicial Member FINAL ORDER NO. DATED Per D.N. Panda:
None present for the appellant. Appeal was filed on 3rd March, 2010 against appellate order passed on 1.12.2009. Along with appeal the appellant has also moved stay application for stay of realization of demand of Rs. 1,86,039/- and penalty of equal amount. The demand arose in view of disallowance of Cenvat credit wrongly availed on inputs as well as the capital goods falling under Chapter 72 of the Central Excise Tariff Act, 1985, which are not entitled to Cenvat credit as alleged in the show cause notice.
2. The case of the appellant is that these items were used for the purpose of repair and maintenance and as structural items of plant and machinery. But the audit finding revealed that those items were not entitled to the benefit.
3. Although the appellant is not present, there is also no application for adjournment.
4. Learned D.R. submits that this Tribunal has decided the present issue in the case of Vandana Global Ltd. vs. CCE, Raipur, reported in 2010 (253) ELT 440 (Tri.- LB). Learned adjudicating authority can appropriately adjudicate the matter in accordance with guidelines given in that decision. Therefore, it would be proper to remand the matter to the adjudicating authority to decide the issue in accordance with law instead of keeping the matter pending here.
5. Heard learned D.R. There is no doubt that the issue is covered by the decision of the Larger Bench of the Tribunal in the case of Vandana Global (supra). There is also a decision of Honble Supreme Court in the case of CCE, Jaipur vs. Rajasthan Spg. & Wvg. Mills Ltd., reported in 2010 (255) ELT 481 (SC) on a similar set of issue. Therefore, dispensing with pre-deposit the matter is remanded to the learned Adjudicating authority to decide the issue afresh granting fair opportunity of hearing to the appellant and in the light of above two judgments and passing a reasoned and speaking order within 3 months of receipt of this order. In the result, stay application as well as appeal are disposed off.
(Dictated & pronounced in the Open Court.) (D.N. PANDA) JUDICIAL MEMBER RK 3