Custom, Excise & Service Tax Tribunal
M/S. Kohinoor Biscuit Products vs Commissioner Of Central Excise on 14 May, 2012
IN THE CUSTOMS, EXCISE AND SERVICE TAX
APPELLATE TRIBUNAL, NEW DELHI
PRINCIPAL BENCH, COURT NO. III
Excise Appeal No. 2673 of 2011-SM(BR)
Excise Stay No. 3480 of 2011-SM(BR)
Date of Hearing/decision : 14.5.2012
[Arising out of Order-in-Appeal No. 197/CE/Appl/ NOIDA/ 2011 dated 30. 08.2011 passed by the Commissioner of Central Excise (Appeals) NOIDA]
For approval and signature:
Hon'ble Ms. Archana Wadhwa, Member (Judicial)
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 Their Lordships wish to see the fair :
copy of the Order?
4. Whether Order is to be circulated to the :
Departmental authorities?
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M/s. Kohinoor Biscuit Products Appellants
Vs.
Commissioner of Central Excise Respondent
NOIDA
Appearance:
Shri Jatin Mahajan, Advocate for the Appellants
Ms. Renu Jagdev, SDR for the Respondent
ORAL ORDER NO . ________________________
Per Archana Wadhwa:
After dispensing with the condition of pre-deposit of duty and penalty, I proceed to decide the appeal itself inasmuch as a short issue, covered by the precedent decision is involved. The issue is as to whether the appellant is entitled to avail the Cenvat credit of Service Tax paid on transportation charges from place of manufacture to the various depots of M/s. Parle Products Pvt. Ltd. on whose behalf they are manufacturing the biscuits and other confectionery items.
2. On going through the order of Commissioner (appeals), I find that he has taken note of decision of Larger Bench of the Tribunal in the case of ABB Ltd. vs. CCE & Service Tax, Bangalore reported as [2009 (92) RLT 665 (CESTAT-LB)] covering the disputed issue but has not followed the same on the ground that the same has not been accepted and matter is sub-judice as an appeal against the said decision has been filed in the Karnataka High Court by the Department. I find that this impugned order was passed by the Commissioner on 30.8.11 by which time the appeal of the Revenue was disposed of by Honble Karnataka High Court, as reported in 2011 (23) STR 97(Kar). The said decision of the Honble High Court is dated 23.3.11. Inasmuch as the number of dispute on the said issues were pending decision at various levels starting from the original adjudicating authority, the first appellate authority and the Tribunal, the Karnataka High Court decision was being eagerly awaited by all concerned. As such, it is not fair on the part of the Commissioner (Appeals) to observe, even after a period of 5 months from the date of passing of order of the Honble Karnataka High Court that the matter is sub-judice before the Honble High Court.
3. In any case, inasmuch as the issue stands covered, I set aside the impugned order and allow the appeal with consequential relief to the appellants.
(Pronounced in the open court ) ( Archana Wadhwa) Member(Technical) ss 3