Custom, Excise & Service Tax Tribunal
Commr. Of Central Excise, Customs, Bbsr ... vs M/S Sarvesh Refractories (P) Ltd on 14 September, 2012
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL,
EAST REGIONAL BENCH : KOLKATA
SP-885/12
& Ex. Appeal No.534/12
Arising out of O/A No.02/CE/BBSR-II/2012 dated 28.05.2012 passed by Commr. of Central Excise (Appeals) & Service Tax, BBSR.
For approval and signature:
DR. D. M. MISRA, HONBLE JUDICIAL MEMBER
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 should be released under Rule 27 of the
CESTAT (Procedure) Rules, 1982 for publication
in any authoritative report or not? :
3. Whether His Lordship wishes to see the fair copy
of the Order? :
4. Whether Order is to be circulated to the Departmental
Authorities? :
Commr. of Central Excise, Customs, BBSR II
APPELLANT(S)
VERSUS
M/s Sarvesh Refractories (P) Ltd.
RESPONDENT (S)
APPEARANCE Shri A. K. Biswas, Supdt. (A.R.) for the Department None for the Respondent CORAM:
DR. D. M. MISRA, HONBLE JUDICIAL MEMBER DATE OF HEARING & DECISION : 14. 09. 2012 ORDER NO..
Per Dr. D. M. Misra :
This is an application for waiver of predeposit of duty of Rs.4,98,075/- and equal amount of penalty imposed under Section 11AC of the Central Excise Rules, 1944. None present for the Respondent.
2. Heard the ld. A.R. for the Department. The contention of the ld. A.R. is that the issue involved in this case is availment of cenvat credit on outward freight and period involved in this case is April, 2005 to August, 2005 which is covered by the decision of the Honble High Court of Karnataka at Bangalore in the case of Commr. of Central Excise & Service Tax, LTU, Bangalore Vs. ABB Ltd. 2011 (23) STR 97 (Kar.).
3. After hearing the ld.A.R. for the Department, I find that the appeal itself can be disposed of at this stage. Therefore, after waiving the requirement of predeposit, I take up the appeal for disposal.
4.1 I find that the issue involved in this case is availment of cenvat credit on outward freight and period involved in this case is April, 2005 to August, 2005. The contention is that the appellate authority in its Order-in-Appeal No. 02/CE/BBSR-II/2012 dated 28.05.2012 has relied upon the decision of the Honble Karnataka High Court in the case of Commissioner of Central Excise, Bangalore Vs. ABB Ltd. : 2011 (23) STR 97 (Kar) and has set aside the order of the lower authority. In the above referred case, the Honble Karnataka High Court has affirmed that credit of service tax paid can be availed of for outward transportation. The contention is that the Department has filed an appeal against the decision of the Honble Karnataka High Court in the case of Commr. of Central Excise, Bangalore Vs. ABB Ltd. (supra) and the Honble Apex Court has admitted the same as SLP (Civil) No.25857/2011.
4.2 I find that issue stands settled by the decision of Honble High Court of Karnataka at Bangalore in the case of ABB Ltd. (supra) wherein the Honble High Court has held that for the period prior to 01.04.2008, cenvat credit on outward freight is admissible and the decision has not been stayed or set aside.
4.3 Undisputedly, the period involved in this case is April, 2005 to August, 2005. I find that the issue regarding cenvat credit on outward freight for the period piror to 01.04.2008 stands settled by the decision of the Honble High Court of Karnataka at Bangalore in the case of ABB Ltd. (supra). The Honble High Court in Para 34 has held as under :
34.?For the reasons, which we have assigned in our order, the final order of the Tribunal is legal and valid. We further make it clear that this interpretation is valid till 1-4-2008. In that view of the matter, but for the aforesaid modification, we do not see any merit in these appeals. The substantial questions of law raised are answered in favour of the assesses and against the revenue. 4.4 In these circumstances, the impugned order is upheld and the Revenues appeal which is devoid of merit is dismissed. Stay petition is disposed of accordingly.
Dictated and pronounced in the open Court.
Sd/ ( DR. D. M. MISRA ) JUDICIAL MEMBER mm 3 Ex.Appeal No.534/12