Custom, Excise & Service Tax Tribunal
M/S Jamna Auto Industries Ltd vs Cce, Delhi-Iii on 5 May, 2014
IN THE CUSTOMS, EXCISE & SERVICE TAX
APPELLATE TRIBUNAL
West Block No. 2, R.K. Puram, New Delhi 110 066.
Date of Hearing : 5.5.2014
Appeal No. E/969/2012-EX(SM)
[Arising out of the Order-in-Appeal No. 11/BK/PKL/2012 dated 18.1.2012 passed by the Commissioner of Central Excise (Appeals), Gurgaon)
For Approval & signature :
Honble Ms. Archana Wadhwa, Member (Judicial)
1.
Whether Press Reporter 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 Jamna Auto Industries Ltd. Appellant
Vs.
CCE, Delhi-III Respondent
Appearance Shri Hemant Bajaj, Advocate - for the appellant Shri M.S. Negi, A.R. - for the respondent CORAM:Honble Ms. Archana Wadhwa, Member (Judicial) Final Order No.51972/2014 Per Archana Wadhwa :
After hearing both the sides, I find that the appellants are engaged in the manufacture of motor vehicle parts. A part of demand to the extent of Rs.1,56,275/- and of Rs.61,422/- stands confirmed against the appellant by denying the Cenvat credit of duty availed by them in respect of already cleared and rejected goods by their customers M/s Tata Motors, in terms of Rule 16 of Central Excise Rules. The goods were originally cleared by the appellant on payment of duty and the same were rejected by M/s Tata and received back by the appellant and again cleared on payment of duty. There is no dispute about the above facts which are also supported by the certificate issued by M/s Tata Motors. The Revenue is denying the credit on the sole ground that there is no evidence of transportation of the goods from the premises of M/s Tata Motors to the appellant premises.
2. After going through the impugned orders, I find that the factum of the receipt of the rejected goods is not being doubted by the Revenue and the same stands duly accounted for in the appellants record along with corroborative evidence in the shape of certificate issued by M/s Tata Motors. As such, mere fact of non availability of the transportation evidence, will not result in denial of the credit, which is otherwise admissible to the appellant in terms of Rule 16 of Central Excise Rules. Accordingly, I set aside the said part of the impugned order and allow the credit to be availed by the assessee.
3. Further the appellants are also supplying the motor vehicle parts to M/s Ashok Leyland. In terms of an agreement entered by them with M/s Ashok Layland effective from 1.7.2007, there was a price escalation clause. However, the appellant by mistake, in respect of the goods cleared from April to May 2007, raised supplementary invoices somewhere in November 2007, and accordingly paid duty. Inasmuch as the escalation was effective only from 1.7.2007, M/s Ashok Layland did not accept such supplementary invoices in respect of the goods cleared during the period April to May 2007. Accordingly, the duty paid by the appellant in respect of such supplementary invoices was not liable to be paid. They accordingly took suo moto credit of the same in their Cenvat credit account.
4. The Revenue is not disputing the above facts but their only objection is that refund claim should have been filed instead of suo moto availing the credit.
5. The appellants have challenged the said confirmation of demand of Rs.1,87,174/- on the point of limitation, inasmuch as the Show Cause Notice was issued on 8.3.2010. By drawing my attention to the Show Cause Notice, ld. Advocate submits that the said demand stands raised on the scrutiny of the appellants statutory documents itself, which shows that everything was recorded and there cannot be any mala fide. The appellants have also reflected the availment of the credit in their returns filed for the relevant period 2007-2008. Inasmuch as the re-entry was made in December 2007 and the notice stands issued on 8.3.2010, I agree with the ld. Advocate that the demand is barred by limitation. The same is accordingly set aside.
6. In view of the above, the appeal is allowed with consequential relief.
(Dictated & pronounced in open Court) (Archana Wadhwa) Member (Judicial) RM 1