Custom, Excise & Service Tax Tribunal
M/S Euro Multivision Ltd vs Commissioner, C.Ex. & S.Tax on 8 June, 2016
In The Customs, Excise & Service Tax Appellate Tribunal
West Zonal Bench At Ahmedabad
Appeal No.E/1560-1565/2008
[Arising out of OIA No. 265 to 271/2008/COMMR(A)/RAJ, dt.22.09.2008, passed by Commissioner(Appeals), C.Ex. & S.Tax, Rajkot]
M/s Euro Multivision Ltd Appellant
Vs
Commissioner, C.Ex. & S.Tax, Respondent
Rajkot Represented by:
For Appellant: None For Respondent: Dr. J. Nagori, A.R. (Addl. Commr.) For approval and signature:
Honble Dr. D.M. Misra, Member (Judicial) Honble Mr. P.M. Saleem, Member (Technical)
1. Whether Press Reporters may be allowed to see the No 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 Seen the order?
4. Whether order is to be circulated to the Departmental Yes authorities?
CORAM:
HONBLE DR. D.M. MISRA, MEMBER (JUDICIAL) HONBLE MR. P.M. SALEEM, MEMBER (TECHNICAL) Date of Hearing/Decision:08.06.2016 Order No.A/10499-10504/2016, dt.08.06.2016 Per: Dr. D.M. Misra None was present for the Appellant. The matter has been listed for hearing on several occasions viz. 31.12.2015, 08.02.2016, 16.03.2016, 02.06.2016 and today. Even though the notices of hearing were sent at the address mentioned in EA-3 form, no one appeared nor is there any request for adjournment.
2. Briefly stated the facts of the case are that the Appellants had set up a new industrial unit in Kutch District of Gujarat after 31.07.2001. The Committee consisting of Chief Commissioner of Central Excise and Principle Secretary to Government of Gujarat, Department of Industries, Govt. of Gujarat, Gandhinagar, certified the original value of investment in Plant & Machinery as Rs.40,89,21,876/- and accordingly became eligible to the benefit of Notification No.39/2001-CE, dt.31.07.2001, as amended. The commercial production of the unit had started from 04.04.2005. Initially the production capacity was 75 lakhs unit/pm and later it was increased on addition of Plant and Machinery by further 75 lakhs unit/pm, totaling to 150 lakh units. Claiming the benefit of said notification 39/2001-CE, the Appellant had filed seven refund claims for the period April 2007 to February 2008. The Adjudicating authority partly allowed the refund claims observing that the Appellant had failed to furnish the data relating production from machineries installed prior to 31.12.2005 and thereafter, the refund claim be restricted to in proportion to the production capacity. Aggrieved by the said Orders, the Appellants preferred appeals before the learned Commissioner (Appeals). The learned Commissioner (Appeals), after analysing the issue and observations of the Adjudicating authority, came to conclusion that the reasoning recorded by the Adjudicating authority restricting the refund to 50% of the claim without ascertaining the facts of actual dat e of addition of capacity is not in accordance with the provisions contained in the said notification and since the record was insufficient, to determine the issue, remanded the case to the Adjudicating authority for reconsideration of the issues afresh.
3. The learned Authorised Representative for the Revenue submits that against the remand order, the Appellants has come before this Tribunal. He submits that the issue is no more res integra. The Hon'ble Gujarat High Court in the case of Saurashtra Ferrous Pvt. Ltd. Vs UoI - 2014 (209) ELT 49 (Guj.) has settled the issue on the eligibility of the benefit of Notification No.39/2001-CE, dt.31.07.2001. It has been held that the production arising from the machineries installed after 31.12.2005, are not eligible to the benefit of said Notification which has been followed by the Tribunal in the case of CCE Rajkot Vs M/s Varsana Ispat Ltd 2015-TIOL-2234-CESTAT-AHM. He submits that he has no objection in remanding the case to the Adjudicating authority to decide the issue afresh after asceraing the facts of production from the machineries installed before and after 31.12.2005.
4. We find force in the contention of the learned Authorised Representative for the Revenue. The issue of eligibility of Notification No.39/2001-CE on the installation of plant and machinery prior to and after 31.12.2005, has been settled by Hon'ble Gujarat High Court in the case of Saurashtra Ferrous Pvt. Ltds case (supra). Therefore, in the interest of justice, it is prudent to remit the matter to the Adjudicating authority to decide the refund claims afresh in accordance with the principle of law laid down in the aforesaid decision of the Hon'ble Gujarat High Court and the observations recorded by the learned Commissioner (Appeals) in the impugned order. Needless to mention a reasonable of opportunity of hearing be granted to the Appellant. All issues are kept open.
5. Appeal disposed of by way of remand to the Adjudicating authority.
(Dictated and pronounced in the open court)
(P.M. Saleem) (Dr. D.M. Misra)
Member (Technical) Member (Judicial)
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