Custom, Excise & Service Tax Tribunal
M/S. Ecko Cables Pvt Ltd vs Cce, Chandigarh on 26 February, 2013
CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
Court No.II
E/Appeal No.2490/2005
(Arising out of order in appeal No.179/CE/CHD/2005 dated 9.5.2005 passed by the Commissioner of Customs & Central Excise(Appeals), Chandigarh)
Date of Hearing: 26.2.2013
For Approval and signature:
Honble Mrs. Archana Wadhwa, Member Judicial
Honble Mr.Sahab Singh, Technical Member
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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 would 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
Department Authorities?
M/s. Ecko Cables Pvt Ltd Appellants
Vs
CCE, Chandigarh Respondent
Appeared for the Appellant: Shri Hemant Bajaj, Advocate
Appeared for the Respondent: Shri M.S. Negi, DR
Coram: Honble Mrs. Archana Wadhwa, Member Judicial
Honble Mr. Sahab Singh, Member Technical
FINAL ORDER No. 55803/2013
Per Archana Wadhwa:
The dispute in the present appeal relates to availment of cenvat credit on the capital goods.
2. After hearing both the sides, we find that originally the adjudicating authority allowed the cenvat credit. However, on appeal against the above order, the Commissioner (Appeals) vide his order dated 27.10.2004 held the credit to be not admissible by observing as under:-
The respondents have also admitted that they have capitalized full value of capital goods (including the modvat element) in their balance sheets. The plea of the respondents is that they have claimed less depreciation than permissible and that they have not taken depreciation under Section 32 of the Income Tax Act on modvat element. This plea is not convincing and correct because the balance sheet and Income Tax returns clearly establish that depreciation was claimed on modvat element also which amounts to double benefit, which is not permissible.
3. The said order of Commissioner (Appeals) was challenged by the appellant before the Tribunal who vide their Final Order, observed as under:
5. We find that the details of the modvat credit taken and the details of depreciation claimed by the appellants were produced by the appellants before the Commissioner (Appeals). These details are reproduced in para 8 of the written submissions. Prima facie, from the details supplied by the appellants, it appears that the appellants had not claimed depreciation under the Income Tax Act on that portion of the value of assets, which represents duty of excise paid and availed as credit. In these circumstances, pre-deposit of the whole duty amount and equal amount of penalty is waived for hearing of the appeal.
7. As discussed above, the appellants supplied all the details regarding credit taken on the capital goods and the depreciation claimed in respect of the capital goods before the Commissioner (Appeals) but these details were not taken into consideration by the Commissioner (Appeals).
8. In these circumstances, we find that it is fit case for re-consideration. The impugned order is set aside and the matter is remanded back to the Commissioner (Appeals) to consider the issue afresh on merits after affording an opportunity of hearing to the appellants. The appeal is disposed of by way of remand.
4. During remand proceedings, the Commissioner (Appeals) again held against the appellant by observing as under:-
The respondent has admitted that they have capitalized full value of capital goods (including the modvat element) in their balance sheet which is authenticated documents and certified by the Chartered Accountant. The plea of the respondent is that they have claimed the depreciation than permissible and that they have not taken depreciation under Section 32 of the Income Tax on modvat element. This plea is not convincing and correct because the balance sheet and Income Tax returns clearly established that depreciation was claimed on modvat element also which amounts to double benefit which is not permissible according to law.
5. As is seen from the above, the order of Commissioner (Appeals) in remand proceedings is exactly replica of order passed by the order earlier on 27.10.2004. The direction of the Tribunal as contained in the final order to examine the factual position does not stand followed by the appellate authority and he has not bothered to verify the correct factual position as claimed by the assessee. It is also the contention of the learned Advocate that during remand proceedings, they again placed on record written submissions along with the documentary evidences making it very clear that the depreciation does not stand claimed by them from the Income Tax authorities. There is no reference to the said written submissions in the present impugned order of Commissioner (Appeals). As such, we deem it fit to set aside the order of Commissioner (Appeals) and once gain remand the matter to Commissioner (Appeals) to examine the documentary evidences. We order accordingly. All the issues including the issue of time bar is open and appellant is free to argue the matter.
(Order dictated and pronounced in the open Court.) (ARCHANA WADHWA) Member Judicial (SAHAB SINGH) Member Technical MPS* ??
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