Custom, Excise & Service Tax Tribunal
M/S. Wintac Ltd vs Commissioner Of Central Excise And ... on 25 August, 2014
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH BANGALORE Final Order No. 21524 / 2014 Application(s) Involved: E/Stay/22337/2014 in E/22089/2014-DB Appeal(s) Involved: E/22089/2014-DB [Arising out of Order-in-Original No.BLR-EXCUS-003-COM-17-13-14 dated 21/03/2014 passed by Commissioner of Central Excise , BANGALORE-III ] M/s. Wintac Ltd 54/1, Boodhihal, Nelamangala BANGALORE. KARNATAKA Appellant(s) Versus Commissioner of Central Excise And Service Tax Bangalore-III PB.NO.5400, QUEENS ROAD, CENTRAL REVENUES BUILDING, BANGALORE - 560001 KARNATAKA Respondent(s)
Appearance:
Mr. T. V. Ajayan, Advocate RAVI SHANKAR & CHANDER KUMAR, ADVOCATES 504,4TH FLOOR, OXFORD TOWERS, NO.139, OLD AIRPORT ROAD, KODIHALLI, BANGALORE - 560008 KARNATAKA For the Appellant Dr. A. K. Nigam, Addl. Commissioner (AR) For the Respondent CORAM:
HON'BLE SHRI B.S.V.MURTHY, TECHNICAL MEMBER HON'BLE SHRI S.K. MOHANTY, JUDICIAL MEMBER Date of Hearing: 25/08/2014 Date of Decision: 25/08/2014 Order Per : B.S.V.MURTHY Vide Final Order No.25351/2013 dated 7.5.2013, the matter had been remanded to the Commissioner, the original adjudicating authority for de novo adjudication. It was clearly indicated that the Commissioner should consider the request made by the assessee under Rule 6(7) of CCR, 2004 read with Section 73 of Finance Act, 2010. As a result of the remand order, the impugned order has been passed.
2. After hearing both sides for some time, we find considerable force in the submissions of the appellant that the matter has to be remanded once again. The arguments put forth are briefly summarized below.
(i) Despite finding that the appellant had produced the CENVAT register showing the reversal of CENVAT credit and challan indicating the payment of interest and in spite of the Cost Accountants certificate being made available for the consideration of the adjudicating authority at the time of personal hearing prior to adjudication of the dispute, the adjudicating authority grossly erred in rendering a finding that the application filed by the appellant to claim the benefit under Section 73 of the Finance Act, 2010 is totally incomplete and not in accordance with the Section 73 of the Finance Act, 2010 on the ground that the appellant has not filed any supporting documentary evidences to show as to how they arrived at the proportionate CENVAT Credit amount and they have not filed Chartered Accountant certificate or Cost Accountant certificate certifying the proportionate CENVAT credit and without supporting documents to the calculations of dues arrived and furnished by them, no plausible verification of the same can be done by the Range Officer and also that the appellants have not produced the details of the credits attributable to the input service used for manufacture of exempted goods under their letter dated 15.6.2010.
(ii) The appellants had made payments with interest and produced copies of CENVAT register and certificate from Chartered Accountant or Cost Accountant certifying the amount of input credit attributable to the inputs. However, the Commissioner stated that documentary evidence of payment was not produced even though copies of CENVAT credit register had been produced.
(iii) Prima facie, the submission of the appellant is that what is required to be verified is the proof of payment by the concerned adjudicating authority and not the calculation of proportionate CENVAT Credit by the Cost Accountant or Chartered Accountant. Prima facie when the application is made, it should be accepted and if it is found subsequently that on verification that there is any defect in calculation on the part of the Cost Accountant or Chartered Accountant, proceedings can be initiated against the appellant.
(iv) The appellants had made a claim on 15.6.2010 within the time specified and when the claim was not complete and in the absence of any reply to such claim, the Commissioner was duty bound to point out the omission and give opportunities to the appellant to make good such omissions.
3. In view of the above, we consider that matter requires detailed consideration once again in the hands of the Commissioner. Therefore the impugned order is set aside and the matter is remanded to the original adjudicating authority once again with a request to adjudicate the matter afresh. (Operative portion of the order has been pronounced in open court) S.K. MOHANTY JUDICIAL MEMBER B.S.V.MURTHY TECHNICAL MEMBER rv