Custom, Excise & Service Tax Tribunal
C.C.E., Allahabad vs M/S Balrampurchini Mills Ltd. (In ... on 7 October, 2016
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL,
REGIONAL BENCH : ALLAHABAD
Appeal Nos.E/1950-1952/2008-[SM
WITH
Cross Application Nos.E/CROSS/369,371,370/2008
Arising out of Order-in-Appeal Nos.74 to 76-CE/ALLD/2008 dated 29.05.2008 passed by Commissioner (Appeals) Customs, Central Excise & Service Tax, Allahabad.
For approval and signature:
HONBLE MR. ANIL CHOUDHARY, 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? : No
2. Whether it should be released under Rule 27 of the
CESTAT (Procedure) Rules, 1982 for publication
in any authoritative report or not? : Yes
3. Whether His Lordship wishes to see the fair copy
of the Order? : Seen
4. Whether Order is to be circulated to the Departmental
Authorities? : Yes
C.C.E., Allahabad
APPELLANT(S)
VERSUS
M/s BalrampurChini Mills Ltd. (in Appeal No.E/1950/2008)
M/s Tulsipur Sugar Co. Ltd. (in Appeal No.E/1951/2008)
M/s Balrampur Chini Mills Ltd. (in Appeal No.E/1952/2008)
RESPONDENT (S)
APPEARANCE Shri Pawan Kumar Singh, Supdt. (A.R.) for the Department (s) Shri Mayank Garg, Advocate for the Respondent (s) CORAM:
HONBLE MR. ANIL CHOUDHARY, MEMBER (JUDICIAL) DATE OF HEARING & PRONOUNCEMENT: 07.10.2016 FINAL ORDER NO.- 70965-70967/2016_______ Per Mr. Anil Choudhary :
Both the Revenue is in Appeal against the order of Ld. Commissioner (Appeals) and the assessee is in Cross objection against common order in Appeal dated 29.05.2008.
2. As per the impugned Order-in-Appeal, the Ld. Commissioner (Appeals) have held that the assessee is not required to reverse any duty under Rule 3 (5A) of Cenvat Credit Rules, 2004 for the capital goods removed as scrap during the period 20062007. Further, the findings are recorded that the liability to pay an amount equal to duty on sale of scrap of capital goods under Rule 3 (5A) of the Rules ibid, arise only when initially Cenvat credit was availed on such capital goods. The respondent-assessee contended that no Cenvat credit was availed by them on such capital goods. Admittedly, such capital goods were acquired by the assessee prior to 1994, when the scheme of credit allowing Cenvat credit on capital goods came on statute. Accordingly, on such findings that no Cenvat credit has been taken and as such, no Cenvat credit is required to be reversed, allowed the appeal of the assessee.
3. Being aggrieved the Revenue is in Appeal before this Tribunal on the ground that since insertion of sub-Rule 5A in Rule 3 of CCR, 2004 with effect from 16.05.2005, in respect of manufacturer was made liable to pay an amount of duty on the transaction value of capital goods, if cleared as waste and scrap.
4. Having considered the rival contentions, I hold that Rule 3(5) read with Rule 3(5A) of CCR, 2004, provides for reversal of Cenvat Credit taken at the time of acquisition of a capital asset upon the event of its removal or disposal as waste and scrap. The condition precedent for applicability of reversal of Cenvat credit is the taking of credit. Admittedly, when no credit have been taken on the capital goods in question, I do not find any error in the order of the Ld. Commissioner appeals. Accordingly, I dismiss the appeals of Revenue and uphold the Order-in-Appeal. The respondent-assessee will be entitled to consequential benefits, if any, in accordance with law. Cross objections are also disposed of.
(Dictated and Pronounced in the open Court) SD/ (ANIL CHOUDHARY) MEMBER (JUDICIAL) Mishra 2 Appeal No.E/1950-1952/08