Custom, Excise & Service Tax Tribunal
) Kirloskar Oil Engines Ltd vs & 2)Commissioner Of Central Excise & ... on 10 June, 2009
IN THE CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL
WEST ZONAL BENCH AT MUMBAI
COURT No. II
Appeals Nos. 1) E/S/1950/08 in E/1249/08
2) E/S/423/09 in E/325/09
3) E/316/08 & E/CO/92/08
(Arising out Order-in-Appeal Nos.
1) IPL (259)07/08 dated 16.10.08, 2) IPL (287)11/08 dated 26.12.08, 3) RKR (30)229/07 dated 19.12.07 passed by the Commissioner of Central Excise & Customs (Appeals), Aurangabad)
For approval and signature:
Honble Mr. P.G. Chacko, 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?
1) Kirloskar Oil Engines Ltd.
2) GKN Sinter Metals Ltd.
3) Commissioner of Central Excise & Customs, Aurangabad
..Appellants
Vs.
1 & 2)Commissioner of Central Excise & Customs, Aurangabad
3) Kirloskar Oil Engines Ltd.
.Respondents
Appearance:
Shri S.P. Sheth, Advocate for appellant no. 1 Ms. Aparna Hirandagi, Advocate for appellant no. 2 Shri Manish Mohan, SDR for appellant no. 3 Shri K. Lal, SDR for respondent no. 1 Shri S.M. Vaidya, JDR for respondent no. 2 Shri S.P. Sheth, Advocate for respondent no. 3 CORAM:
Honble Mr. P.G. Chacko, Member (Judicial) Date of hearing : 10.6.2009 Date of decision : 10.6.2009 O R D E R No:..
In appeal nos. E/1249/08 and E/325/09, the appellants have prayed for pre-deposit and stay of recovery in respect of the adjudged dues. One of these parties is the respondent in the departments appeal E/316/08 which arises for final hearing today. As a common issue is involved in all these appeals, I am inclined to dispose of the two appeals E/1249/08 & E/325/09 along with Appeal E/316/08. Accordingly, after dispensing with pre-deposit, the said two appeals are now taken up for final disposal along with the Revenues appeal.
2. After examining the records and hearing both sides, I note that the common issue arising in these cases stands settled against the Revenue by judgements of the Punjab & Haryana High Court in Ambuja Cements Ltd. vs. UOI & Others 2009-TIOL-110-HC-P&H-ST as also by a larger bench decision of the Tribunal in ABB Ltd. & Others vs. CCE & Others 2009-TIOL-830-CESTAT-BANG-LB. In fact the larger bench of the Tribunal relied on Ambuja Cements Ltd. (supra) wherein CENVAT credit on outward transportation of final product from the assessees factory to the buyers premises was allowed to the assessee upon the finding that the requirements of the Boards circular no. 97/8/2007-ST dated 23.8.07 had been fulfilled by the assessee. The Honble High Court was giving effect to para 8.2 of the above circular, wherein three conditions were laid down to be satisfied by a manufacturer of excisable goods for the purpose of availing the benefit of CENVAT credit on outward transportation of such goods from his factory to the buyers premises. According to the Honble High Courts ruling, where these conditions are found to have been satisfied, the benefit of CENVAT credit should be allowed to the assessee. The question now arising for consideration is whether these conditions were satisfied by the assessees in the present cases.
3. In the order impugned in the Revenues appeal, the ld. Commissioner (Appeals) examined the above question and held in favour of the assessee and accordingly allowed CENVAT credit on outward transportation, to them. In the Revenues appeal, the only ground raised by the appellant with reference to the Boards circular is that this circular cannot be given retrospective effect. As rightly pointed out by the ld. counsel for the respondent in this appeal, para 8.2 of the said circular was actually given retrospective effect by the High Court in Ambuja Cements Ltd. (supra). For this reason, the Revenues appeal is dismissed. The respondent in that appeal has filed certain cross-objections wherein one of the grievances raised by the party is that the time bar issue and the penalty-related issue were not examined by the lower appellate authority. These grievances stand automatically redressed with the dismissal of the Revenues appeal on merits.
4. In the assessees appeals, the challenge is against the orders of the Commissioner (Appeals) who took the view that the original authority should pass fresh orders of adjudication in the light of the High Courts decision in Ambuja Cements Ltd. There is nothing on record to show that any of the lower authorities made an attempt to examine whether the assessees fulfilled the conditions laid down in para 8.2. As per the High Courts ruling, the benefit of CENVAT credit on outward transportation would be admissible only where such conditions have been complied with. In this view of the matter, the remand ordered by the lower appellate authority to the original authority cannot be interfered with. These appeals of the assessees are disposed of with a direction to the original authority to pass fresh orders of adjudication in terms of this order after giving the assessees a reasonable opportunity of being heard.
(Dictated in Court) (P.G. Chacko) Member (Judicial) //SR 5