Custom, Excise & Service Tax Tribunal
Pepsico India Holdings Pvt. Ltd vs Commissioner Of Central Excise, ... on 13 March, 2009
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT No. I APPLICATION No. E/S/1860/08 APPEAL No. E/1192/08 (Arising out of Order-in-Appeal No. SRK/549/M-II/2008 dated 5.9.2008 passed by Commissioner of Central Excise (Appeals), Mumbai-II) For approval and signature: Hon'ble Mr. P.G. Chacko, Member (Judicial) ======================================================
1. Whether Press Reporters may be allowed to see : No 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 : Seen of the Order?
4. Whether Order is to be circulated to the Departmental : Yes authorities?
====================================================== Pepsico India Holdings Pvt. Ltd. Appellant Vs. Commissioner of Central Excise, Mumbai-II Respondent Appearance: Shri Ashish Khare, Plant Finance Manager, for appellant Shri T. Tiju, Authorised Representative (JDR), for respondent CORAM: Hon'ble Mr. P.G. Chacko, Member (Judicial) Date of Hearing: 13.3.2009 Date of Decision: 13.3.2009 ORDER NO.................................
After examining the records and hearing both sides, I am of the view that the appeal itself requires to be finally disposed of at this stage. Accordingly, after dispensing with pre-deposit, I take up the appeal.
2. In adjudication of a show-cause notice dated 14.6.2006, the original authority confirmed against the appellants a demand of duty of Rs.2,32,977/- equivalent to the excess credit found to have been taken by them during the period from May to July 2005. It also charged interest under Section 11AB of the Central Excise Act and imposed penalty equal to duty under Section 11AC of the Act. The appeal filed by the party against the order of adjudication was rejected by the Commissioner (Appeals). Hence the present appeal.
3. The authorised representative of the appellant company submits that the above excess credit happened to be taken by mistake. This mistake is sought to be established with the aid of what is called "reconciliation statement" filed today. From the records, it appears that a reconciliation statement was filed with the original authority and that the said authority called for a report thereon from the range officer. The range officer submitted the following report:-
"The SCN was issued for the excess utilization of the Cenvat credit where as the defense put forth by the assessee is related to reduction of assessable value of BIB item falling under Ch.S.H. No. 21069019 which is not warranted and an afterthought. It is pertinent to note that the present SCN has taken into consideration the revised opening balance of Cenvat credit for the month of June 05. Hence there is no ground of whatsoever for the assessee to take cognizance of the reconciliation statement."
Apparently, the Assistant Commissioner strictly followed the above suggestion of the range officer and, in the result, confirmed the demand of duty, imposed penalty etc. He did not take cognizance of the reconciliation statement. In the impugned order, the learned Commissioner (Appeals) recognised the mistake in the CENVAT account of the party. He found that there was a mistake in the opening balance of June 2005 vis-a-vis the closing balance of the previous month and that this mistake was carried forward through July 2005 with the result that excess credit of Rs.2,33,444/- happened to be taken by the appellants. However, the appellants' plea that the mistake was only clerical was rejected. On the appellate Commissioner's part, again, there was no attempt to get at the real nature of the mistake and rectify the same. These circumstances, I think, call for a remand of the case to the original authority inasmuch as neither of the authorities applied its mind to the issue involved in the case. The original authority did not feel like independently applying its mind to the reconciliation statement. It chose to follow the dictates of the range officer who, in his report, said that no cognizance of the statement need to be taken. On his part, the Commissioner (Appeals) recognised the mistake but did not choose to rectify it either on his own or by way of remand to the lower authority. In this scenario, I set aside the orders of the lower authorities and allow this appeal by way of remand with a direction to the original authority to take fresh decision in the matter after independently applying its mind to the reconciliation statement filed by the party as also giving them a reasonable opportunity of being heard.
(Pronounced in Court) (P.G. Chacko) Member (Judicial) tvu 1 4