Custom, Excise & Service Tax Tribunal
Bayer Cropscience Ltd vs Commissioner Of Central Excise, Thane I on 26 December, 2011
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, WEST ZONAL BENCH AT MUMBAI
COURT NO. II
APPLICATION NO. E/S/2395/10
IN APPEAL NO. E/2154/10 Mum
(Arising out of Order-in-Appeal No. SB/141/Th-I/2010 dated 14.09.2010 passed by the Commissioner of Central Excise (Appeals), Mumbai I.
For approval and signature:
Honble Shri. B.S.V. Murthy, Member (Technical)
and
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 : 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?
Bayer Cropscience Ltd.,
:
Appellant
Versus
Commissioner of Central Excise, Thane I
Respondent
Appearance Shri Prakash Shah, Advocate For appellant Shri Sanjay Kalra, Appraiser (A.R.) For respondent CORAM:
Shri. B.S.V. Murthy, Member (Technical) Shri. Ashok Jindal, Member (Judicial) Date of Hearing : 26.12.2011 Date of Decision : 26.12.2011 ORDER NO.
Per : B.S.V. Murthy The appellant had availed credit of service tax paid on various services distributed by their head office. During the audit of the accounts of the factory, it was found that in respect of telephone service and courier service, the credit had been taken but the services had been utilized for both the dutiable and exempted products manufactured by the appellant which resulted in confirmation of duty demand with equivalent amount of penalty. The duty demand has been calculated by the Revenue to be the amount equal to 10 per cent of exempted goods.
2. The learned Advocate on behalf of the appellant submitted that in this case, both the services were not used for exempted products by the appellant since the exempted products are manufactured on jobwork basis. Further it was also submitted that the credit was taken on the basis of invoice issued by the Head office and the invoice issued by the Head office has not been based on the actual utilization of the service but based on the cost of each unit as per the principles established by the Company. Under this circumstance, it cannot be said that the credit has been taken only in respect of services which have been received by the appellant. Further, he also submitted that in this case the Commissioner (Appeals) had called for a report from the division and without giving a copy of the report from the division, the impugned order has been passed. The principle of natural justice has been violated.
3. We find force in the contention of the appellant. A copy of the report should have been given to the appellant before passing the impugned order. Under this circumstance, we consider, instead of granting waiver of pre-deposit and stay, it would be in the interest of justice that the matter has to be remanded straightway. We accordingly take up the appeal itself and remand the matter Commissioner (Appeals) for fresh decision. Needless to say that the appellant shall be given a reasonable opportunity of hearing to present their case and also makes it clear that all the issues are kept open.
(Pronounced in open Court) (Ashok Jindal) Member (Judicial) (B.S.V. Murthy) Member (Technical) nsk 2