Custom, Excise & Service Tax Tribunal
M/S. Mauria Udyog Limited vs Cce & St Delhi-Iv, Faridabad on 18 December, 2017
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL,
SCO 147-148, SECTOR 17-C, CHANDIGARH-160017
SINGLE MEMBER BENCH
Court-II
Appeal No.E/60697/2017
(Arising out of OIA No.64/CE/Appeal-II/Delhi/2017 dt.6.6.2017 passed by the CCE(Appeals), Delhi-II, Gurgaon)
Date of Hearing/Decision: 18.12.2017
M/s. Mauria Udyog Limited Appellant
Vs.
CCE & ST Delhi-IV, Faridabad Respondent
Present for the Appellant: Shri Y.S.Kumar, Advocate Present for the Respondent: Shri G.S.Dhillon, AR Coram: Honble Mr.Devender Singh, Member (Technical) FINAL ORDER NO.62155/2017 PER: DEVENDER SINGH The brief facts of the case are that the appellant had availed input service credit on outward transportation of the finished goods upto premises of customers. The period involved in the appeal is from May, 2007 to March, 2008. A show cause notice was issued on the ground that such credit was inadmissible and the appellant did not put forth any documents evidencing admissibly of credit to the satisfaction of the Department in light of the judgment in the case of Gujarat Ambuja Cements Ltd.-2007 (6) STR 249 (Tri.-Del.). The show cause notice was issued raising a demand of Rs.5,77,959/- along with interest and proposing penalty under Rule 15 of Cenvat Credit Rules,2004 (CCR). The matter was adjudicated and the adjudicating authority confirmed the demand along with interest and imposed penalty of Rs. 1.50 lakh under Rule 15 of Cenvat Credit Rules, The appellant filed an appeal before the Commissioner (Appeals). The Commissioner (Appeals) remanded the matter to the adjudicating authority with following observations:
4(iv) In the light of the above judgments and circular, it is evidently clear that the decision of instant case (including the issue of interest and penalty) is dependent upon the answer of the question as to whether or not the findings (supra) of Adjudicating authority in respect of fright charges are valid. I also note that except a single Purchase order, nothing has been placed on record by the appellant to examine the veracity of the findings of Adjudicating authority or the validity of the claim of appellant. So this issue cannot be examined by the undersigned at this stage without documentary evidences. Further, the Adjudicating Authority has also failed to mention the numbers and date of Purchase orders/invoices wherein the freight charges were collected separately by the appellant as mentioned in his findings. So, in the interest of justice, the instant case is to be remitted back to the Adjudicating Authority for limited purpose viz. to mention the numbers an date of invoices and Purchase orders as mentioned in his findings given in para 11 of Order-in-Original. The appellant is also directed to produce the relevant records to prove his claim before the Adjudicating authority. Aggrieved from the same, the appellant has filed this appeal.
2. Ld. Advocate for the appellant submits that the facts have not been brought out correctly in the order of the Commissioner (Appeals). In this regard, he referred to para 4(ii) of the Commissioner (Appeals). He also pleaded that the case laws relied upon by the appellant, namely, Escorts JCB vs. CCE, Delhi-II 2002 9146) ELT 31 (SC), New Allenberry Works vs. CCE, New Delhi 2015 (37) STR 303 (Tri.-Del.), CCE, Bangalore vs. ABB Ltd.-2011 (23) STR 97 (Kar.) and Parth Poly Wooven Pvt.Ltd.-2012 (25) STR 4 (Guj.) were not dealt with by the Commissioner (Appeals) in his order. On being asked, he confirmed that place of removal in their case is the factory gate and they had collected freight from the buyer. He also invited attention to the purchase order and invoices. However, the purchase order could not be co-related with the invoices. It is to be noted that the Revenue is not in appeal against the remand order of the Commissioner (Appeals).
3. Ld.AR submits that the fact that the freight was not included in the assessable value for the purpose of central excise was not brought to the notice of the adjudicating authority as well as to the Commissioner (Appeals) at any stage. He relied upon the judgments in the case of Palco Metals Ltd. vs. CCE, Ahmedabad-2012 (280) ELT 299(Tri.-Ahmd.), CCE, Kolkata-VI vs. Vesuvious India Limited vs. CCE-2014 (34) STR 26 (Kol.) and Gujarat Ambuja Cements Ltd.-2009 ( 236) ELT 431 (P&H) to contend that the inputs credit of service tax can be availed where the freight has been included in the assessable value and the duty has been collected thereon. He argued that in the case at hand this is not the case.
4. Heard the rival submissions and perused the record.
5. Both sides agree that in this case, the goods were cleared on ex factory basis and no central excise duty has been paid on the freight element. From the order of the adjudicating authority, it is evident that it has applied the Board circular dated 23.8.2007 incorrectly because on one hand there is a finding given that the goods have been cleared on ex factory basis and on the other it has proceeded to examine the three conditions in the said circular which relate only where the place of removal is not the factory gate. In the order of the Commissioner (Appeals) also, there appears to be confusion on the facts and undoubtedly the judgments relied upon by the appellant were not considered. Since the facts need to be amply clear and accordingly the law has to be applied, the order of the Commissioner (Appeals) remanding the matter to the adjudicating authority is modified to the extent that the adjudicating authority would bring out the relevant facts clearly and pass a fresh order in accordance with law, particularly keeping in view the judgments of the jurisdictional High Court on the issue. Needless to say, the appellant would be given fair opportunity to defend their case.
6. The matter is disposed of in the above terms.
(dictated & pronounced in the court) (DEVENDER SINGH) MEMBER (TECHNICAL) mk 1 Appeal No.E/60697/2017 M/s.Mauria Udyog Ltd. vs. CCE & ST, Faridabad