Custom, Excise & Service Tax Tribunal
Commissioner Of Central Excise vs M/S. Crop Care Pesticides Pvt. Ltd on 21 July, 2010
IN THE CUSTOMS, EXCISE AND SERVICE TAX
APPELLATE TRIBUNAL, NEW DELHI
PRINCIPAL BENCH, COURT NO. III
Service Tax Appeal No. 940 of 2009
[Arising out of Order-in-Appeal No. 41/CE/APPL/CHD-II/2009 dated 9.10.2009 passed by the Commissioner (Appeals), Central Excise, Chandigarh]
For approval and signature:
Hon'ble Mr. M. Veeraiyan, Member (Technical)
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?
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Commissioner of Central Excise Appellants Chandigarh II
Vs.
M/s. Crop Care Pesticides Pvt. Ltd. Respondent
Appearance: Shri I. Baig, SDR for the Appellants
Shri V.R. Sethi, Advocate for the Respondent
Date of Hearing /decision: 21.7.2010
ORAL ORDER NO . ________________________
Per M. Veeraiyan:
This is an appeal by the department against the order of the Commissioner (Appeals) No. 41/CE/APPL/CHD-II/2009 dated 9.10.09 by which the order of the original authority confirming demand of duty and imposing penalty stands set aside.
2. Heard both sides.
3. The respondent is a manufacturer of pesticides and they are availing Cenvat credit on inputs and input services. They also procure river sand which is one of the non-dutiable inputs and incur goods transport agency services for bringing the inputs to the factory and take credit of Service Tax paid on GTA services. Show cause notice was issued alleging that part of the sand was sold by the respondents as such to M/s. Punjab Chemicals and Crop Protection Ltd. and in view of the same, the credit taken on input services associated with procurement of the sand was not eligible. Original authority confirmed demand of Rs.55,765/- along with interest and imposed equal amount as penalty. On appeal by the party, the Commissioner (Appeals) has set aside the order of the original authority.
4. Learned SDR reiterates the grounds of appeal and finding of the order of the original authority. He also submits that the claim regarding use of the sand in the job work meant for M/s. Punjab Chemicals and Crop Protection Ltd. was raised before the Commissioner (Appeals) for the first time and same was not raised before the original authority.
5. Learned Advocate for the respondents produced copies of appeal memo filed before the Commissioner (Appeals) and claimed that no river sand as such was sold as held by the original authority but entire sand was used in their factory either in relation to their own manufacture or in relation to job work.
6. I have carefully considered the submissions from both sides and perused the records. The show cause notice and the order-in-original proceeds on the basis that the river sand was diverted as such on sale by the respondents. The submission of the respondent-assessee before the Commissioner (Appeals) was that they have not diverted the sand as such but used the same in the job work undertaken for M/s. Punjab Chemicals and Crop Protection Ltd. and the billing for price of sand was only part of billing for job work. As this relevant submission have been raised before the Commissioner (Appeals) for the first time and the Commissioner (Appeals) has not ascertained the views of the original authority before relying upon such a claim, I deem it appropriate to set aside the orders of the Commissioner (Appeals) and original authority and remand the matter to the original authority for fresh consideration of the matter after taking into consideration the above submissions of the respondent-assessee and after granting reasonable opportunity of hearing.
7. The appeal is allowed by way of remand.
(M. Veeraiyan) Member (Technical) ss 3