Custom, Excise & Service Tax Tribunal
Bullows Paint Equipment Pvt. Ltd vs Cce Mumbai Iii on 28 March, 2014
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, WEST ZONAL BENCH AT MUMBAI
COURT NO. II
APPEAL NO. E/2762, 2763, 2776/06 Mum
(Arising out of Order-in-Appeal No. AT/364 to 366/M.III/2006 dated 31.05.2006 passed by the Commissioner of Central Excise (Appeals), Mumbai II)
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?
Bullows Paint Equipment Pvt. Ltd.
T.S. Ramaswamy
S.R. Lingras
:
Appellant
Versus
CCE Mumbai III
Respondent
Appearance Shri Vishal Agarwal, Advocate For appellants Shri V.C. Khole, Jt. Commissioner (A.R.) For Respondents CORAM:
Shri Ashok Jindal, Member (Judicial) Date of Hearing : 28.03.2014 Date of Decision : 28.03.2014 ORDER NO.
Per Ashok Jindal The appellants are in appeal against the impugned order wherein the matter was remanded back to the adjudicating authority for verification of the facts.
2. The facts in brief are that the appellants are manufacturer of spray painting equipment and components, industrial washing machine etc. Sometime their customers want spray painting guns and parts thereof along with the spray painting equipment. As the appellant is not a manufacturer of spray painting guns, they had imported the spray guns on payment of proper customs duty. The duty paid spray painting guns were cleared along with spray painting equipment as a whole equipment on payment of duty or in some cases in parts as demanded by their customers on reversal of CENVAT Credit of duty paid on these spray painting guns. The Revenue was of the view that the spray painting guns are bought out items and are not being used in the manufacture of final products. It was also alleged that as this spray painting guns have been cleared as such therefore, the appellants are not entitled to take credit. Accordingly, a show-cause notice was issued and the same was adjudicated. Demanded were confirmed. On appeal, the learned Commissioner (Appeals) remanded the matter back to the adjudicating authority for verification purpose. Against the order impugned, the appellants are in appeals.
3. Heard both sides.
4. The learned Counsel appearing on behalf of the appellants submits that the facts are very much clear in the show-cause notice. The only allegation is that the spray painting guns have been cleared as such on reversal of the credit taken. Further the spray guns have been cleared along with the spray painting equipment on payment of duty. Therefore, the question of verification of these facts by the adjudicating authority after a period of more than 15 years of importation does not arise. When the facts are clear that the appellants have cleared the inputs as such and as per Rule 57F(3) Central Excise Rules, 1944, if inputs are cleared as such the assessee is required to reverse the credit taken on these inputs on their clearance. These guns were cleared either along with the spray painting equipment by including the value of such guns in the assessable value or were cleared as such by reversing the credit availed on such guns. Therefore, there is no requirement to remand the matter to the adjudicating authority for fresh verification after a period of 15 years.
5. On the other hand, the learned A.R. appearing for the Revenue supported the impugned order and prays that the impugned order is to be upheld.
6. Considered the submissions and perused the records.
7. The short issue involved in this matter is that whether the bought out items cleared along with the final product which forms cost of production and cleared on payment of duty the input credit of duty paid on bought out is admissible or not and whether the inputs cleared as such on reversal of credit taken on their own is sufficient or not. As both the issue have been answered in favour of the appellant that when inputs forms the part of final product and the same has been cleared on payment of duty, the appellant is entitled for input credit. Further as the spray painting guns have been cleared as such on reversal of the credit taken is sufficient for the appellant to take input credit. In these circumstances, there is no requirement to remand matter back to the adjudicating authority. Hence the impugned order is set aside and the appeals are allowed with consequential relief, if any.
(Dictated in Court) (Ashok Jindal) Member (Judicial) nsk ??
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