Custom, Excise & Service Tax Tribunal
M/S. Ranbaxy Laboratories Ltd vs Commissioner Of Central Excise on 6 April, 2015
IN THE CUSTOMS, EXCISE AND SERVICE TAX
APPELLATE TRIBUNAL, NEW DELHI
PRINCIPAL BENCH, COURT NO. II
Excise Appeal No. 59656 of 2013 - Ex (SM)
[Arising out of Order-In-Appeal No. JAL-EXCUS-000-APP-001-13-14 dated 06.06.2013 passed by Commissioner of Central Excise (Appeals), Chandigarh II ]
For approval and signature:
Honble Mr Ashok Jindal, Member (Judicial)
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Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
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Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
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Whether Their Lordships wish to see the fair copy of the Order?
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Whether Order is to be circulated to the Departmental authorities?
M/s. Ranbaxy Laboratories Ltd. Appellants
Vs.
Commissioner of Central Excise Respondent
& ST, Chandigarh I Appearance:
Ms. Sukriti Das, Advocate for the Appellants Shri A K Dhawan, AR for the Respondent CORAM:
Hon'ble Shri Ashok Jindal, Member (Judicial) Date of Hearing /decision: 6.4.2015 FINAL ORDER NO. A/ 51467 /2015-Ex(SM) Per Ashok Jindal :
The case has been made out against the appellant on the basis of audit conducted during the period April,2007 at the premises of appellant on the premise that appellant has wrongly availed Cenvat credit in respect of inputs and input service which was not received by the appellant as such but were consumed by the job worker for remanufacture of transformers out of old and used transformers supplied by the appellant to the job worker. Such input and input services were not received by the appellant. As such, therefore they are not entitled to take Cenvat credit on the same. A show cause notice dated 9.2.2011 was issued by invoking the extended period of limitation and same was adjudicated by the adjudicating authority who dropped the charges in the show cause notice alleged in the show cause notice. On appeal, the learned Commissioner (Appeals) set aside the adjudication order, therefore appellant is before me. Learned Counsel for the appellant submits that in this case, the only charge in the show cause notice is that as the appellant has not received inputs or input services in their factory, therefore they are not entitled to take Cenvat credit. As held by this Tribunal in the case of Flex Industries Ltd. vs. CCE, NOIDA [2006 (201) ELT 479 (Tri-Del) wherein it is held that if the material sent by the job worker for processing directly, appellant is entitled to for transfer of Cenvat credit. Therefore, they are entitled to take Cenvat credit on the inputs which have been directly sent by them to the job worker which were consumed by job worker in manufacturing /repairing of the transformers. The adjudicating authority rightly held that appellant is entitled to take Cenvat credit but the learned Commissioner (Appeals) has gone beyond the allegation of show cause notice to deny the Cenvat credit. Therefore, impugned order is to be set aside. She further submits that in this case, there is no allegation against the appellant that they have taken the Cenvat credit with suppression of facts, fraud, collusion, willful mis-statement or have contravened the rule with intent to evade payment of duty. Therefore, show cause notice cannot be issued by invoking extended period of limitation. Therefore, impugned order is to be set aside.
2. On the other hand, learned AR submits that it is not a case of sending the inputs to the job worker but it is a case where inputs has been procured by the job worker itself on the basis of job worker invoice and the appellant has taken the Cenvat credit.
3. Heard the parties. Considered the submissions
4. Without going into the merits of the case, I find that in this case, the allegation against the appellant is that they have taken the Cenvat credit wrongly.
5. Audit was conducted in April,2007 and show cause notice was issued on 9.2.2011 by invoking the extended period of limitation. As there is no allegation against the appellant. that appellant has availed Cenvat credit on the basis of fraud, collusion wilful mis-statement, suppression of facts or any contravention of Rules/ Act with intent to evade payment of duty, therefore, extended period of limitation is not invokable. As the Show cause has been issued by extending the limitation period, therefore, show cause notice is not sustainable in the eyes of law. In these terms, appeal succeed on the point of limitation itself. Therefore, I set aside the impugned order and allow the appeal with consequential relief, if any.
(Dictated and pronounced in the open court )
( Ashok Jindal ) Member(Judicial)
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