Custom, Excise & Service Tax Tribunal
M/S Oswal Fats And Oils Ltd vs Cce & St, Ludhiana on 28 November, 2014
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL West Block No. 2, R.K. Puram, New Delhi 110 066. Principal Bench, New Delhi COURT NO. III DATE OF HEARING : 28/11/2014. DATE OF DECISION : 28/11/2014. Excise Stay Application No. 54116 of 2014 in Appeal No. 53678 of 2014 [Arising out of the Order-in-Original No. 15/LDH/2014 dated 13/03/2014 passed by The Commissioner of Central Excise, Ludhiana.] For Approval and signature : Honble Ms. Archana Wadhwa, Member (Judicial) Honble Shri Rakesh Kumar, Member (Technical) 1. 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 would 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 : Department Authorities? M/s Oswal Fats and Oils Ltd. Appellant Versus CCE & ST, Ludhiana Respondent
Appearance Shri Balbir Singh, Advocate for the appellant.
Shri R.K. Grover, Authorized Representative (DR) for the Respondent.
CORAM : Honble Ms. Archana Wadhwa, Member (Judicial) Honble Shri Rakesh Kumar, Member (Technical) Final Order No. 54676/2014 Dated : 28/11/2014 Per. Archana Wadhwa :-
After dispensing with the condition of pre-deposit of duty and penalty, we proceed to decide the appeal itself in as much as we find that very important relevant submissions raised by the appellant during the course of adjudication, do not stand considered by the Commissioner.
2. The appellants are, interalia engaged in the manufacture of dutiable as also exempted final product. Proceedings were initiated against them by way of show cause notice dated 02/8/01 raising demand of duty to Rs. 5.23 crores for the period July 1996 to December 2000, in terms of the erstwhile provisions Rule 57CC, which requires an assessee to pay 8% of the value of the final exempted products, in case common cenvatable goods have gone into the manufacture of dutiable as also exempted products and the appellant has not maintained separate records and has availed the credit in respect of the entire common inputs.
3. It is seen that the said notice was kept in the call book for a considerable period of time and was ultimately decided only on 13/3/14. During the adjudication, the appellant took a categorical stand that they have availed Cenvat credit on common inputs only to the extent of those inputs which were used in the manufacture of dutiable final product. As regards the inputs gone into the manufacture of exempted product, no credit was ever availed in respect of some of the raw materials, but there may be over-lapping of the credit to the small extent, which the appellant undertook to reverse.
4. Without adverting to the said plea of the appellant, the Commissioner has simplicitor confirmed the demand on the ground that the appellant have not maintained separate records and it is not possible to arrive at the quantum of the common raw materials going into the manufacture of the dutiable as also exempted final products.
5. We find no appreciation for the above reasoning of the Adjudicating Authority. Admittedly, the quantum of dutiable final product as also the exempted final product would be available to the Revenue, as also the input/output ratio. From the said ratio, it can be conveniently arrived at on the quantum of inputs used in the manufacture of dutiable final product. When such quantum, so arrived is compared to the quantum of inputs, on which the appellants has taken the credit, the facts would become clear.
6. In as much as the above exercise can be done only at the original level, we deem it fit to set aside the impugned order and remand the matter to the Adjudicating Authority for undertaking the said exercise with the assistance of the appellants jurisdictional Central Excise Authorities and to decide the issue afresh, based upon their report. As regards some of the common inputs, if any, the appellant would be first given the option to reverse the credit involved on common inputs.
7. Needless to say that the said report would be with the assistance of the appellant, who would cooperate with the Revenue and the same would be given to the assessee to seek their comments. We make it clear that all other issues including the issue of limitation is kept up for the assessee to assail the same in denovo proceeding. Stay petition as also appeal get disposed of in above manner.
(Dictated and pronounced in open court) (Archana Wadhwa) Member (Judicial) (Rakesh Kumar) Member (Technical) PK ??
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