Custom, Excise & Service Tax Tribunal
Cce, Puducherry vs M/S. Supreme Industries Ltd on 7 March, 2013
IN THE CUSTOMS, EXCISE & SERVICE TAX
APPELLATE TRIBUNAL
SOUTH ZONAL BENCH, CHENNAI
E/1435/2004
(Arising out of Order-in-Appeal No.75 & 76/2004 dated 25.8.2004 passed by the Commissioner of Central Excise (Appeals), Chennai)
For approval and signature:
Honble Shri P.K. Das, Judicial Member
Honble Shri Mathew John, Technical Member
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 the Members wish to see the fair copy of the Order?
4. Whether order is to be circulated to the Departmental authorities?
CCE, Puducherry Appellant
Vs.
M/s. Supreme Industries Ltd. Respondent
Appearance Shri Parmod Kumar, Jt. Commr. (AR) for the Appellant Shri T. Chandran Nair, Advocate for the Respondent CORAM Honble Shri P.K. Das, Judicial Member Honble Shri Mathew John, Technical Member Date of Hearing: 07.03.2013 Date of Decision: 07.03.2013 Final Order No. ____________ Per P.K. Das Revenue filed this appeal against Order-in-Appeal No. 75/2004 & 76/2004 both dated 25.8.2004 passed by the Commissioner of Central Excise (Appeals), Chennai. As the common issue involved, the Commissioner (Appeals) by the impugned order set aside two separate Orders-in-Original No. 04/2004 and 06/2004 both dated 25.2.2004 passed by the Assistant Commissioner of Central Excise, Pondicherry I Division.
2. The learned AR fairly submits that the Revenue filed two appeals reportedly against the impugned order before this Tribunal. Appeal No. E/1436/2004 was filed by the Revenue against denial of credit of Rs.11,019/- along with penalty and interest confirmed by Order-in-Original No. 04/2004 dated 25.2.2004. By Final Order No. 1551/2005 dated 9.12.2005, the Tribunal in Appeal No. E/1436/2004 allowed the appeal of the Revenue to the extent of denial of credit of Rs.11,019/-. Hence the present appeal relates to the denial of credit of Rs.85,027/- and penalty of Rs.15,000/- along with interest by Order-in-Original No. 06/2004 dated 25.2.2004.
2. Heard both sides and perused the records.
3. The relevant facts of the case in brief as revealed from the records are that the respondents are engaged in the manufacture of plastic moulded furniture. By show-cause notice dated 7.6.2002, it has been proposed to deny the CENVAT credit of Rs.10,85,366/- paid on the rejected and returned goods to the factory for the purpose of re-making and re-conditioning during the period July 2001 to February 2002 under Rule 16(1) of the Central Excise (No.2), Rules, 2001. The original authority confirmed the demand of Rs.85,027/- and imposed penalty of Rs.15,000/- along with interest. The respondent filed appeal before the Commissioner (Appeals) which was allowed. The main contention of the learned AR is that the Commissioner (appeals) allowed the appeal without considering the facts of the case in proper manner. He submits that the Commissioner (Appeals) should have disallowed the entire credit of Rs.10,85,366/-. He submit that both the authorities below failed to appreciate that the respondents is unable to correlate the goods in question with the invoice.
4. After considering the submissions of both sides, we find that the original authority confirmed the demand of Rs.85,027/- along with interest and penalty and dropped the balance amount of demand as proposed in the show-cause notice. It is seen that the Revenue was not aggrieved with the adjudication order as no appeal was filed by the Revenue before the Commissioner (Appeals). So, the appeal filed by the Revenue before the Tribunal would be restricted to the extent of demand of Rs.85,027/- along with interest and penalty in the order, which was set aside by the Commissioner (Appeals). We find from the order of the original authority that the credit was allowed on the basis of verification report of the Range Officer as under:-
As the assessee had claimed that the impugned goods have been received under the parent invoices and credit notes had also been issued, the Range Superintendent had been asked to verify their claim. The Range Officer after verification of all the relevant documents had in his letter in O.C. No.45/2004 dated 22.1.2004 had reported that the assessees had taken credit of Rs.10,85,366/- based on the transporter copy of invoices for the goods returned and that they had issued credit notes only to the extent of Rs.10,00,339/- and for the remaining amount of Rs.85,027/- there is no documentary evidence to prove that the duty amount involved in those returned goods had been paid back to the buyers who had returned the goods.
5. Commissioner (Appeals) set aside the adjudication order on the ground that once the returned goods and related documents have been correlated and there is no dispute about the identity of the goods, the allegations in the show-cause notice stands resolved. We find that the adjudicating authority confirmed the demand of Rs.85,027/- after considering the verification report of the Range Officer, which was not disputed by the Commissioner (Appeals). In our considered view the order passed by the original authority is proper and reasonable based on the verification report of the Range Officer. However, considering the facts and circumstances of the case, we find that the penalty of Rs.15,000/- imposed by the original authority cannot be sustained.
6. In view of the above discussions, we set aside the order of the Commissioner (Appeals) and uphold the order of the original authority subject to penalty of Rs.15,000/- is set aside. The appeal filed by the Revenue is disposed of in the above terms.
(Operative portion of the order was
pronounced in open court)
(Mathew John) (P.K. Das)
Technical Member Judicial Member
Rex
2