Custom, Excise & Service Tax Tribunal
Glass & Ceramics Decorators vs Commissioner Of Central Excise, Mumbai ... on 8 April, 2011
IN THE CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL
WEST ZONAL BENCH AT MUMBAI
Application No. E/S/436/10 in Appeal No. E/350/10
(Arising out Order-in-Appeal No. 5B/58/M-IV/09 dated 8.12.2009 passed by the Commissioner of Central Excise (Appeals), Mumbai I)
For approval and signature:
Honble Mr. B.S.V. Murthy, Member (Technical)
Honble Mr. Ashok Jindal, Member (Judicial)
1. Whether Press Reporters may be allowed to see Yes
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 No CESTAT (Procedure) Rules, 1982 for publication
in any authoritative report or not?
3. Whether Their Lordships wish to see the fair copy Seen
of the Order?
4. Whether Order is to be circulated to the Departmental yes
authorities?
Glass & Ceramics Decorators
Appellant
Vs.
Commissioner of Central Excise, Mumbai IV
Respondent
Appearance:
Shri Bharat Raichandani, Advocate for the appellant Shri S.M. Vaidya, JDR for the respondent CORAM:
Honble Mr. B.S.V. Murthy, Member (Technical) Honble Mr. Ashok Jindal, Member (Judicial) Date of hearing : 08.04.2011 Date of decision : 08.04.2011 O R D E R No:..
Per: Shri B.S.V. Murthy, Member (Technical) The appellant imported two bottle decorating machines and availed CENVAT credit of Rs.23,33,782/- during the year 2002-03 and 2004-05. Subsequently, the appellant exported the machines. In the impugned order the appellant has been required to pay the CENVAT credit amount utilised by them on the ground that machines were not put to use. Further, penalty equal to the CENVAT credit amount demanded has also been imposed demanding interest.
2. The ld. advocate on behalf of the appellant submitted that ld. Commissioner (Appeals) in the impugned order has come to the conclusion that the machines were not used on the basis of a letter written by the appellant on 21.6.2006. Further, he has ignored the evidence submitted by the appellant in the form of production reports, machine wise production which show the machines were put to use about 13 months. Further, the appellant also filed an affidavit that the machines were used. He submits that these evidences have not been considered and there is no observation as to whether as to why these documentary evidence produced by the appellant are not acceptable.
3. After hearing the ld. counsel, we find that once the appellant submitted production report and other evidence it was necessary for the lower authority to verify the same and record his observation. There is no observation at all as regards these evidences and why the same are not acceptable. Since the documentary evidence has not been considered, we find it appropriate that the matter has to be remanded for fresh consideration. The Ld. DR fairly agrees that he has no objection for remand. In view of the above observation, the requirement of pre-deposit of the amount demanded is waived, the stay application is allowed and the appeal itself is taken up and the matter remanded to the adjudicating authority, who shall consider the submissions made by the appellant afresh and pass reasoned order. We make it clear that we are not making any observation as regards the merits of the appeal and all contentions are kept open.
(Dictated in Court) Ashok Jindal B.S.V. Murthy Member (Judicial) Member (Technical) SR 3